Alert! Enforcement of OSHA's ETS for COVID-19 Begins Today!

January 10, 2022

Starting today, OSHA will begin enforcing all aspects of the ETS for COVID-19, save for the provisions that apply to weekly testing of employees who are not fully vaccinated.  OSHA has stated that it will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard.  On Friday, January 7, 2022, the U.S. Supreme Court heard oral arguments on the issue of whether to reinstitute a stay of the entire ETS.  The Court has not yet issued a decision.  In the meantime, employees with 100 or more employees can expect OSHA to take enforcement action with respect to the ETS.

NIA will continue to update you regarding the status of the COVID-19 vaccine and testing mandates.

Free Advice and Articles on Coronavirus/COVID-19 for Employers from NIA Legal Counsel

We would like to share several resources for employers related to Coronavirus disease (COVID-19) from NIA Legal Counsel, Gary Auman of Auman, Mahan & Furry.

December 2021: Update from NIA Legal Counsel

December 20, 2021—Update: Sixth Circuit Lifts Stay of OSHA Covid-19 Emergency Temporary Standard

Enforcement of OSHA’s Covid-19 emergency temporary standard (“ETS”), requiring all employers with 100 or more employees to implement a vaccine or testing policy, had been stayed (i.e., put on hold) while its legality is being challenged.  However, on Friday, December 17, 2021, the Sixth Circuit Court of Appeals lifted the stay.  That means OSHA can now enforce the ETS.  The Sixth Circuit’s decision does not impact the federal contractor vaccine mandate, which remains stayed.

OSHA stated that it will not issue any citations for failure to comply with the ETS before January 10, 2022.  This will allow employers time to get their programs implemented.  Further OSHA indicated that it will not issue citations for non-compliance before February 9, 2022 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

Although the Sixth Circuit lifted the stay, the Court has yet to reach a decision on the merits of the underlying challenges to the ETS.  In the meantime, a number of petitioners have appealed Friday’s decision to the U.S. Supreme Court, seeking to again stay enforcement of the ETS.

If your business is covered by the ETS, you should work to have your written Covid-19 plan in place by January 10, 2022 and begin following those elements of the plan that you are able to implement immediately.  OSHA has provided policy templates on its website for employers electing to follow the “mandatory vaccination” option, as well as employers electing the “vaccination or testing and face covering” option for compliance.  Those policy templates can be found here.  To the extent that the ETS will require you to implement measures that you are not able to complete by January 10, 2022, you will need to decide upon a timeline to follow to ensure that you reach full compliance by February 9, 2022.

NIA will continue to update you regarding the status of the COVID-19 vaccine/testing mandates.

December 1, 2021—Injunctions Granted Against Vaccine Mandates

On November 30, 2021, two courts granted injunctions against the federal contractor vaccine mandate and the Centers for Medicare and Medicaid Services (CMS) mandate.

• The Eastern District of Kentucky District Court granted a preliminary injunction prohibiting enforcement of the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee during the pendency of the litigation.
  • President Biden signed Executive Order 14042 on September 9, 2021, directing the Safer Federal Workforce Task Force to issue guidance regarding adequate COVID-19 safety protocols. That Guidance was issued on September 24, 2021, and requires all covered employees to be vaccinated by January 4, 2022.
  • In granting the preliminary injunction, the Court held that the President exceeded his authority under the Federal Property and Administrative Services Act (FPASA).
  • Further, the Court explained that due to the vaccine mandate applying to employees who work entirely from home, the same logic could lead to the FPASA being used to permit federal agencies to refuse to contract with contractors “who employ individuals over a certain BMI for the sake of economy and efficiency during the pandemic? After all, the CDC has declared that ‘obesity worsens the outcome from COVID-19.’”
• The Western District of Louisiana District Court granted a preliminary injunction prohibiting enforcement of the CMS vaccine mandate for healthcare workers during the pendency of the litigation throughout the United States. The Eastern District of Missouri also issued an injunction against the CMS vaccine mandate covering 15 states.
  • The CMS issued a vaccine mandate on November 5, 2021, requiring all staff of covered healthcare providers to be fully vaccinated by January 4, 2022.
  • In granting the preliminary injunction, the Court found that it appeared that CMS violated the Administrative Procedures Act by not allowing for notice and comment as required. The Court notes that CMS took almost 2 months to prepare the interim final rule showing that the situation was not so urgent that notice and comment were not required.
  • The Court also found that it is likely that CMS exceeded their authority in enacting the vaccine mandate and that the mandate is arbitrary and capricious. The Court also noted that “The rejection of natural immunity as an alternative is puzzling” and that “The ‘evidence’ CMS relied upon in rejecting that alternative is not provided.” Further, the Court questioned: “If boosters are needed 6 months after being ‘fully vaccinated,’ then how good are the COVID-19 vaccines, and why is it necessary to mandate them?”
• The OSHA ETS requiring, among other things, vaccines, and/or testing for employers with 100 employees or more remains stayed at this time.
  • OSHA has appealed the stay (while stating that it will not enforce the ETS during the stay) in the 6^th Circuit.  
    
  • Several unions, including the United Food and Commercial Workers International Union, AFL/CIO-CLC and the American Federation of Labor-Congress of Industrial Organizations requested that the case be transferred to the D.C. Circuit because the D.C. Circuit handled the Unions’ litigation to compel OSHA to promulgate an ETS for COVID-19 in 2020.
  • We expect decisions on these requests to be issued shortly.
• Federal employees and the military have also been informed that they will not be terminated at this time if they remain unvaccinated.

If you are keeping score, the federal vaccine mandates appear to be falling or at least are being paused. However, in most states, private employers are generally able to mandate vaccines for its employees if an accommodation process for medical and religious reasons is provided.

NIA will continue to update you regarding the status of the COVID-19 vaccine/testing mandates.

November 15, 2021—Status of OSHA’s ETS for COVID-19

Summary of Recent Critical Events:

• Enforcement of the OSHA Emergency Temporary Standard on Covid-19 is delayed pending full judicial review.
• On Friday, November 12, 2012, the Fifth Circuit Court of Appeals affirmed its initial “stay” which continues unless lifted.
• A lottery will determine which Circuit Court of Appeals will actually conduct the judicial review of the ETS.
• That court may lift or continue the stay pending the litigation. That litigation could completely strike down the ETS.
• Due to so much uncertainty, the attorneys at Auman, Mahan, and Furry have decided to postpone our webinar that had been scheduled for Thursday, November 18, 2021. We will reschedule the webinar as soon as there is something more to report and NIA will contact our member companies.

OSHA’s ETS on Covid-19:  Detail and Explanation of Recent Events

On November 5, 2021, OSHA issued an emergency temporary standard (ETS) mandating vaccination and/or testing of all employees employed by employers with 100 or more employees.  Many states, businesses, industry groups, and religious organizations filed challenges in several Federal Circuit Courts of Appeals to block the new ETS.  In addition, several labor unions have sued alleging that the ETS does not go far enough to protect workers from COVID–19.

In response to one of those challenges, the Fifth Circuit Court of Appeals issued a temporary stay of the emergency temporary standard on November 6, 2021.  The Court issued the stay pending briefing and an expedited judicial review.  On Friday, November 12, 2021, the Court completed its review and affirmed its initial stay.

The Fifth Circuit Court of Appeals' decision to affirm the stay was strongly worded and suggests that the stay could remain until the full judicial review is completed. The Court found that the petitioners demonstrated that they are likely to succeed on the merits of their challenge, that they will be irreparably injured without a stay, that the issuance of the stay would not substantially injure other parties interested in the proceeding, and that public interest lies in granting the stay.

Whenever multiple challenges are simultaneously filed in different Federal Circuit Courts of Appeals to the same administrative rule, a lottery is held to determine which of the Circuit Courts in which the challenges were filed will actually hear the case and render a decision on the merits.  That means the challenge to the ETS may or may not stay in the Fifth Circuit Court of Appeals.  The lottery is likely to occur by November 16, 2021.  When the Court has been selected, it may decide to either lift the stay (in which case the ETS will go into effect on the existing schedule) or continue the stay pending a decision on the merits of the challenges.

NIA will continue to actively monitor this matter, and keep you advised. Expect the next update in a timely fashion after the Circuit Court selected to decide the case determines how it will proceed with the challenges to the ETS.

November 5, 2021—OSHA ISSUES COVID-19 EMERGENCY TEMPORARY STANDARD FOR PRIVATE EMPLOYERS

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced a new Emergency Temporary Standard (ETS)—29 CFR §1910.501—that will require private employers with 100+ employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS was published in the Federal Register on November 5, 2021. Covered employers will be required to comply with all provisions by December 5, 2021, save for the vaccination and testing requirements for unvaccinated workers, which take effect January 4, 2022.

Covered Employers

Any employer that has a total of at least 100 employees as of November 5^th and at any time while the ETS is in effect will be covered by the ETS. For purposes of the 100-employee threshold for coverage, the employee count will be based on the total number of employees an employer has across all of its U.S. locations, regardless of where employees perform their work. Part-time employees do count toward the company total, but independent contractors do not. With regard to temporary employees, only the staffing agency would count the jointly employed employees. The host employer, however, would still be covered by the ETS if it has 100 or more of its own employees in addition to the employees of the staffing agency. For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS. On multi-employer worksites, including construction sites, each company represented need only count its own employees. But if an employer has more than 100 employees spread out over multiple construction sites, for example, that employer is covered even if it does not have 100 or more employees present at any one worksite.

Covered Employees

Although an employer may be covered by the ETS, individual employees of those employers may not be covered by the standard. Employers have no duties under the ETS with respect to employees who:

1. Do not report to a workplace where other individuals such as coworkers or customers are present;
2. Work from home; or
3. Work exclusively outdoors. While “exclusively outdoors” is not defined, OSHA’s guidance indicates that work is considered “exclusively outdoors” only if minimal time is spent indoors using the restroom, punching a time clock, etc. Outdoor construction work in a partially constructed building is not considered “outdoors.” Likewise, any indoor periods such as breaks taken in a job trailer would preclude the work from being classified as “exclusively outdoors.”

Summary of Requirements

Among other things, the ETS requires covered employers to:

• Establish, implement, and enforce a written vaccination policy that either: (1) requires employees to be vaccinated; or (2) allows employees to choose to either become fully vaccinated or to undergo regular (weekly) COVID-19 testing and wear a face covering in lieu of vaccination.
• Determine and maintain a record of each employee’s vaccination status, obtain proof of vaccination for vaccinated employees, and preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated.
• Treat all such records concerning employee vaccination as confidential medical records.
• For employers having both vaccinated and unvaccinated employees, develop a written plan that includes different policies and procedures for vaccinated and unvaccinated employees.
• Provide each employee with reasonable time, including up to 4 hours of paid time at the employee’s regular rate of pay, to receive each vaccine dose if the vaccine is received during work hours. Employers may not offset this time with accrued sick leave or vacation leave.
• Provide each employee with “reasonable time” and paid sick leave to recover from side effects of the vaccine. The amount of paid sick leave may be capped, so long as the cap is reasonable. (OSHA suggests up to 2 days of paid sick leave per dose may be reasonable, though this would be subject to other federal, state, or local laws, or collective bargaining agreements).
• Require unvaccinated employees to be tested for COVID-19 at least once every 7 days (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer). Employees may not self-administer and self-read the test unless this is observed by the employer or an authorized telehealth proctor.
• Remove any unvaccinated employee who fails to provide weekly COVID-19 test results from the workplace until the employee provides a negative test result.
• Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
• For employers who implement a vaccination policy that allows testing in lieu of vaccination, maintain and preserve records of employee test results while the ETS is in effect. These records must be treated as confidential medical records.
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
• Make a determination as to the work-relatedness of an employee’s reported case of COVID-19 and record work-related cases of COVID-19 on OSHA forms 200, 300A, and 301. We urge employers to do this carefully and IMMEDIATELY after any employee reports he/she has tested positive for COVID-19.
• Report work-related cases of COVID-19 that result in in-patient hospitalization within 24 hours of when the employer learns of the work-related hospitalization, without regard to whether the employee was hospitalized within 24 hours of the work-related exposure to COVID-19.
• Report work-related cases of COVID-19 that result in fatalities within 8 hours of when the employer learns of the work-related fatality, without regard to whether the death occurred within 30 days of the work-related exposure to COVID-19.
• Train each employee in the requirements of the ETS and on the employer’s policies and procedures established to comply with the ETS. Be sure to document this training.
• Provide information to each employee about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated. Be sure to document distribution of this information.
• Inform each employee about the anti-retaliation requirements found in 29 CFR 1904.35(b)(1)(iv) and in §11(c) of the OSH Act. Be sure to document this action.
• Inform each employee of the prohibitions in 18 U.S.C. 1001 and of section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation (such as falsification of COVID-19 vaccination documents). Be sure to document compliance with this requirement.

Note that the ETS does not require employers to pay for testing if employees are permitted to elect weekly testing in lieu of vaccination; but employers may be required to pay for testing and/or pay for the time it takes an employee to be tested in order to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. We anticipate further guidance from the Department of Labor will be issued in the near future to clarify this issue.

Federal Contractors

Employers covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors are excluded from coverage by the ETS. The vaccine mandate deadline for federal contractors was pushed back to January 4 to be consistent with the effective date for vaccination/testing in the ETS.

Health-Care Services

The ETS does not apply in settings where employees provide health-care services or health-care support services and are covered by 29 CFR 1910.502 (the previously issued ETS for the health-care industry). Health-care employers with 100+ employees will need to follow the ETS with regard to any employees not covered by 1910.502.

Note: This is a dynamic situation and legal challenges are likely, including possible court injunctions.  NIA will continue to keep you advised as additional information becomes available.

September 9, 2021, Administration Announcement of COVID-19 ETS Update

On September 9, 2021, President Biden announced that The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.  In addition, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they suffer adverse side-effects post-vaccination.  OSHA will issue an Emergency Temporary Standard (ETS) to implement these requirements.  It is estimated that these requirements will impact over 80 million workers in private sector businesses.

The ETS is not yet available, and the President did not give an expected timeline for publication.  The White House has indicated that federal workers will have 75 days to get the COVID-19 vaccine under President Biden’s executive order and this may provide a glimpse into the timeline we can expect for private sector employees.

Several states and businesses have indicated that they intend to file legal challenges to the ETS.  In addition, we expect the EEOC to provide guidance relating to how religious and medical exemptions will interact with the ETS.  We are monitoring for developments and will provide an update when additional information becomes available.

Please contact Gary Auman (gwa@amfdayton.com), Abbie White (akw@amfdayton.com), Doug Jenks (dsj@amfdayton.com) or Amy Mitchell (acm@amfdayton.com) if you have any questions.

NIA Legal Counsel Shares COVID-19 Employee Safety Checklist Guidance

To assist you in working with your employees and site supervisors, Gary Auman has created checklists for employees that site supervisors can use as a toolbox talk and bullet-point lists you can distribute to all employees (one for jobsites and a different one for office staff). Not only should the checklist be used to train field and office employees, but we also suggest that the checklist be posted on each jobsite as a reminder to all employees.

Click here for COVID-19 Safety Checklist for Employees

October 2020 Update: OSHA State Plan States amid COVID-19

If you perform work in an OSHA State Plan state, remember the rules in that state govern the work you perform, even if your company is based in a different State Plan state or a state where safety is governed by federal OSHA. For example, Virginia has adopted a very detailed Emergency Temporary Standard for employee exposures to COVID-19. Other State Plan states have either adopted emergency guidance or are in the process of adopting emergency temporary standards. Be aware that guidance in a State Plan state, if more strict than the guidance relied on by federal OSHA to protect employees during the COVID-19 pandemic, will govern all employers working in that state no matter what the guidance or rules are in the state in which the employer is based. Also, if you are going work in a State Plan state, familiarize yourself with the state’s safety standards that will govern your work, as well as the procedures established in that state for challenging any citations you may receive there.

August 31, 2020 Update: Childcare-Related Leave Under the FFCRA

The U.S. Department of Labor has announced its position on three questions regarding schools and employees’ leave eligibility under the Families First Coronavirus Response Act. The answers are important, and some may surprise you. Most notably, the DOL’s position is that employees who have chosen remote learning for their children, when given a choice between that and in-person school, are NOT eligible for paid FFCRA leave. The DOL’s reasoning is that these children’s schools were not “closed” due to COVID-19-related reasons; they were open for the children to attend. This is significant because if these employees are not eligible for paid FFCRA leave, then employers also would not be eligible for tax credits if they provide the paid leave to an ineligible employee.

The DOL announced this and other positions as part of three new Q&As that the DOL posted to its FFCRA Q&A website on August 27, 2020. The Q&As are pasted below for your convenience, and the full list of Q&As can be accessed here. As a reminder, employees who ARE eligible for childcare-related leave under the FFCRA can receive 2/3 pay for up to 12 weeks, subject to statutory caps. Employers then become eligible for and can apply for certain tax credits based on having provided the paid leave to eligible employees.

Source:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

If you have questions about this or any other FFCRA-related issue, please reach out to Amy Mitchell (acm@amfdayton.com) or Matt Bakota (mjb@amfdayton.com) from AM&F’s Labor and Employment group.

Previous Updates:

• Effective May 26, 2020, New OSHA Enforcement of Recordkeeping Requirements
• April 3 Article: Read the full update.
• March 18, 2020: Coronavirus Response for Employers—Next Steps and New Questions  
• March 11, 2020: Coronavirus Response for Employers
• March 11, 2020: Safety News Alert: Coronavirus

Free Call with NIA's Legal Counsel to Discuss Your COVID-19 Questions

Auman, Mahan & Furry's Labor and Employment Group is offering a free 30-minute call on COVID-19 for NIA member companies. Get your questions answered by calling Auman, Mahan & Furry at 937-223-6003.

COVID-19 Ongoing Survey Efforts to Measure Impact on Insulation Companies

The associations representing the insulation industry have been are surveying contractors to gain insights on how COVID-19 is impacting our industry. Due to the fluidity of this situation, and how much changes from day to day, and week to week, some questions will be repeated in each survey so that we can monitor the changes our members are experiencing. We appreciate your participation in them.

See the December 2020 Commercial and Industrial Insulation Contractor Survey, and Residential and Light Commercial Insulation Contractor Survey results.

See how other companies are being impacted by viewing the past 2020 survey results: March 25, April 4, April 17 Commercial and Mechanical, April 17 Residential,  May 22 Residential and Light Commercial Insulation, May 22 Commercial and Industrial Insulation, August 7 Commercial and Industrial Insulation, August 7 Residential and Light Commercial.

COVID-19 Quarantine Periods Changed By CDC

As of December 2, 2020, the CDC has changed the length of time it recommends a person quarantine if exposed to COVID-19. Read more here.

NIA Free COVID-19 Business Management Webinars

NIA is now hosting webinars on business topics that will help navigate the stimulus packages, new regulations, working remotely, and more. After the initial presentation, webinars are archived online so that you can watch them at your convenience. Visit our webinar web page or scroll to the bottom of this page for the topics.

Advocacy: NIA is Working on Your Behalf

NIA has been advocating for the insulation industry on your behalf during this very difficult time. Below is a listing of recent activities and calls to action.

February 26, 2021: NIA advocated for small businesses in support of the Main Street Tax Certainty Act of 2021, to make permanent the Section 199A 20% deduction for qualified business income. This bipartisan legislation will help ensure permanent tax parity for the millions of employers organized as S corporations, partnerships, and sole proprietorships. It will also provide certainty to the countless businesses who have been devastated by the coronavirus pandemic.

July 17: NIA urged the U.S. Senate Finance Committee leadership to consider proposals for new refundable tax credits covering 30% of home and business improvement expenses as a necessary step to stimulate the economy and help get Americans back to work by investing in our homes and businesses. 

May 1: NIA partnered with 53 other construction industry organizations to sign and send letters to Congress and to the Federal Emergency Management Agency (FEMA) to support additional federal resources for virtual capabilities for code departments.

In spring 2020, NIA's Congressional Fly-In Became a Call-In: NIA and industry members advocated for the industry, especially regarding stimulus packages and their needs during COVID-19. At this critical time, members of Congress heard how the COVID-19 crisis is affecting your business and our industry. Click here to visit the Insulation Industry National Policy Conference web page.

April 21: NIA sent a letter to Governors in the Northeast about Reopening Their Economies Responsibly with the Construction Industry

April 7: Sign the letter to the government to address the problems for the insulation and construction industry when applying for the SBA loans.

March 30: Write a Letter to Congress. If you would also like to advocate for yourself, we have drafted a letter for you to personalize and send to your members of Congress. Click here to download a letter to personalize.

March 23: NIA urged modifications to the Cybersecurity and Infrastructure Agency’s Guidance on the Essential Critical Infrastructure Workforce so that insulation industry manufacturers and installers are deemed essential as part of this nation’s critical manufacturing and public works infrastructure. 

Access the Latest Information from CDC and OSHA

• Click here to visit the Centers for Disease Control and Prevention (CDC) website
• Click here to visit the OSHA COVID-19 webpage
• Click here to download the OSHA's poster on guidance for the construction workforce
• Click here to download the OSHA poster for manufacturing guidance
• Guidance on PPE use from FEMA
• OSHA quick safety videos for COVID-19

Other Helpful Construction-Based Resources

• Construction jobsite safety and recordkeeping guidance for Coronavirus

• A construction contractor's guide to coronavirus relief programs and the CARES Act

• Baker Tilly Construction business management and planning coronavirus resources
• Society for Human Resource Management offers COVID-19 HR resources, including information on furloughs, pay cuts, and layoffs.