Kathleen D. Weron
In the course of a two-week period, in response to the Biden administration’s vaccine mandate, there has been a flurry of activity on both the state and federal level.
On the federal level, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS), requiring U.S. employers with 100 or more employees to implement a mandatory COVID-19 vaccination or weekly testing policy. Two days after the ETS was issued, the 5th Circuit Court of Appeals issued a stay temporarily blocking OSHA’s vaccination-or-testing policy and on Nov. 12 ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”
On Nov. 16, the U.S. Judicial Panel on Multidistrict Litigation held a lottery to select the federal court to address the 34 petitions seeking review of the ETS filed in 12 different federal appeals courts, including the 5th Circuit. The lottery resulted in the selection of the 6th Circuit Court of Appeals to receive and hear these cases. The cases will be consolidated and assigned to a randomly selected three-judge panel of the 6th Circuit. The 6th Circuit may choose to agree with the 5th Circuit’s stay order, modify it or vacate the 5th Circuit’s decision and issue its own order. Ultimately, the legality of the ETS likely will not be decided until it is finally reviewed by the U.S. Supreme Court, which will have the final say on whether the ETS is valid and enforceable.
OSHA has also announced that it has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. If the ETS is found to be valid and enforceable by the 6th Circuit panel, OSHA may publish new time deadlines to comply with the ETS provisions, even before review by the U.S. Supreme Court.
Meanwhile, in a special session, the Utah Legislature recently passed SB2004, titled “The Workplace COVID-19 Amendments” (Utah COVID law) which was signed into law by Gov. Spencer Cox on Nov. 16. The law went into effect the same day.
Because the federal ETS has been stayed by the 5th Circuit and suspended by OSHA, the Utah COVID law is the only law in effect for Utah employers (with a limited exception for employers with less than 15 employees). Under the doctrine of federal preemption, when state and federal law conflict, federal law displaces, or preempts, state law due to the Supremacy Clause of the Constitution. Accordingly, if OSHA’s ETS is revived, it will preempt the Utah COVID law. However, the Utah COVID law may not be fully preempted as the federal ETS currently only covers employers with 100 or more employees. For now, while the federal ETS is stayed, Utah employers must comply with the Utah COVID law.
The Utah COVID Law Requirements for Utah Employers
In Utah, employees must be exempted from a COVID-19 vaccination requirement if the employee submits a statement that the vaccine is injurious to the health and well-being of the employee; conflicts with a sincerely held religious belief, practice or observance of the employee; or conflicts with a sincerely held personal belief of the employee. The third exception allows employees in Utah to refuse vaccination for personal reasons, which likely includes hesitancy due to safety, effectiveness or other personal beliefs.
Utah employers may not refuse to hire or terminate an employee because the applicant or employee declines vaccination based on any of the above three grounds. In addition, employers may not demote or reduce the wages of an employee because of such refusal. Employers may assign the employee to a different job without violating the statute, which could include removing employees from the work premises while continuing to compensate them. If reassignment is “not practical,” which is not defined in the statute, an employer may terminate an unvaccinated employee. Because the statute does not define what is “not practical,” employers are advised to consult with employment counsel before terminating an unvaccinated employee rather than reassigning that employee.
Employers may still require employees to wear face coverings, socially distance themselves from others or submit to testing in lieu of vaccination. If the employer requires testing, the employer must pay the cost of the test. Employers may record the vaccination status of employees but may not keep or maintain a record or copy of an employee’s proof of vaccination, unless otherwise required by law or an established business or industry practice.
All Utah employers must comply with the Utah COVID law unless they are subject to regulation by the Centers for Medicare and Medicaid Services regarding a COVID-19 vaccine or are federal contractors. Utah’s COVID law does not apply to employers with fewer than 15 employees where the employer establishes a nexus between the vaccination requirement and the employee’s assigned duties and responsibilities.
Employers are advised to review their vaccination policies to ensure their compliance with Utah’s new COVID law. And while the future of the ETS remains uncertain, it will take weeks of planning for employers to comply with the ETS deadlines in the event the emergency rule is revived, so employers should also familiarize themselves with the requirements of OSHA’s ETS and be prepared to implement the ETS.
Following are the key points with which to familiarize yourself regarding OSHA’s ETS:
Determine Whether the ETS Applies to Your Company. The 100-employee count includes all full-time and part-time U.S. employees of a business. The headcount requirement is not worksite-specific and applies to employers with 100 or more employees companywide in the U.S. during any period while the ETS is in effect. The count also includes any seasonal and temporary employees but does not include independent contractors.
Create a Policy and Record Vaccination Status. Covered employers must create a written policy. Employers must also ensure the enforcement of its policy through training and the use of its workplace rules and disciplinary system. Under the policy, employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination for each employee who is partially or fully vaccinated, maintain records of each employee’s vaccination status and record each test result provided by an employee or obtained during tests conducted by the employer. Records must be maintained as confidential medical records, so files should be kept separate from personnel files and made accessible only to trained employees with a need to know. The ETS does not apply to booster shots.
Mandate the Vaccination Requirement. To comply with the ETS, covered employees must receive an FDA- and WHO-approved or authorized vaccine. Employers must pay employees up to four hours of paid time off, including travel time, to receive their vaccination. This time must be paid at the employee’s regular rate of pay. Employers cannot require employees to use PTO for obtaining the vaccination.
Employers must also provide “reasonable time” and paid sick leave to recover from any side effects experienced after vaccination (OSHA indicates that two or three days is considered a “reasonable time”). If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects following a primary vaccination dose. If an employer provides different types of leave, such as sick leave and vacation leave, the employer can only require employees to use their sick leave when recovering from vaccination side effects.
Ensure Testing for Workers Who are Not Fully Vaccinated. An unvaccinated employee who reports at least once every seven days to a workplace where other individuals are present must be tested once every seven days and provide proof of COVID-19 testing to the employer no later than the seventh day following the date on which the employee last provided a test result.
The ETS does not require onsite testing or provide a preferred method of testing. A COVID-19 rapid test or over-the-counter test may be used, but the test may not be both self-administered and self-read unless observed by the employer or by an authorized telehealth proctor. Employers are not required to pay testing costs. The ETS does not state whether employers must pay to test those who cannot be vaccinated because of a sincerely held religious belief or disability.
The ETS allows “pool testing,” which is the process of combining the same type of specimen from several people and conducting one antigen laboratory test on the combined pool of specimens to detect COVID-19. According to the CDC, pool testing preserves resources and lowers the cost of overall testing. If pooling procedures are used and a pooled test comes back negative, then all the specimens can be presumed negative with a single test. Documentation of negative pool testing would satisfy the ETS testing requirements. If the pool test result is positive, immediate additional individual testing would be necessary to determine which employees are positive and/or negative and then documented accordingly. More information on procedures and recommendations for implementing pooling tests are available on the CDC and FDA websites.
Determine Exempt Employees. The ETS exempts certain employees from its requirements, including employees who do not work in a workplace where other individuals such as coworkers or customers are present, employees working from home, employees who work exclusively outdoors and employees for whom a vaccine is medically contraindicated or a medical necessity requires a delay in vaccination, or a reasonable accommodation is required under either the Americans with Disabilities Act or Title VII because the employee has a sincerely held religious belief, practice or observance that conflicts with the vaccination requirement.
In its recent updated and expanded guidance regarding the obligations of employers under Title VII, the EEOC noted that while an employee’s religious belief must be “sincerely held” to qualify for an accommodation, “the sincerity of an employee’s stated religious beliefs … is usually not in dispute” and the employee’s sincerity is generally a matter of individual credibility. The guidance acknowledges that employers may ask employees for an explanation of how the employee’s religious belief conflicts with the employer’s vaccination policy. An employer is not required to grant a reasonable accommodation request that would constitute an undue hardship. Employers should evaluate these requests individually and carefully, recognizing that these issues are likely to be the subject of future court cases. Individuals who are exempt from the vaccine due to a reasonable accommodation, will still need to undergo weekly testing.
Kathleen D. Weron is an employment law attorney with Manning Curtis Bradshaw & Bednar PLLC in Salt Lake City, where her practice focuses on management employment law counseling and employment litigation defense.
