Biden Administration’s “Shot-or-Test” Rule Heads to the Supreme Court

By John S. Gannon - Skoler, Abbott & Presser, P.C.

January 7, 2022

Today, the U.S. Supreme Court will hear oral argument on the OSHA Vaccination or Testing Emergency Temporary Standard (ETS).  The “shot or test” rule requires most businesses with 100 or more employees to implement a mandatory COVID-19 vaccination policy or require weekly COVID testing for unvaccinated workers. The Court is also hearing arguments today on the Centers for Medicare and Medicaid Services (CMS) rule, which generally requires vaccination of all healthcare workers at CMS-covered facilities.

It is difficult to predict how and when the Court will rule on this contentious case.  Given that OSHA has set as compliance deadline of January 10, 2022, for everything but weekly testing, we expect the Court will release a decision sooner rather than later.  As of today, here is what is technically required to be in place by January 10 (although, we think it is likely that OSHA will wait to hear from the Supreme Court before citing employers for noncompliance with the ETS):

Employer Policy on Vaccination:  Businesses with 100 or more employees need to have a policy in place that either (1) mandates that all employees must be fully vaccinated; or (2) requires all unvaccinated workers are tested for COVID-19 at least every 7 days.  Employees are deemed fully vaccinated two weeks after completing primary vaccination with a COVID-19 vaccine with the minimum recommended interval between doses.  This means two weeks after a second dose in a two-dose series, such as the Pfizer or Moderna vaccines, or two weeks after a single-dose vaccine, such as Johnson & Johnson’s vaccine, or two weeks after the second dose of any combination of two doses of different COVID-19 vaccines as part of one primary vaccination series.

Determination of Vaccination Status:  In order to comply with the ETS, employers must determine whether all employees are fully or partially vaccinated, or unvaccinated.  The ETS also requires that employers maintain a record and a roster of each employee’s vaccination status.  Acceptable proof of vaccination status includes:

- the record of immunization from a health care provider or pharmacy;
- a copy of the COVID-19 Vaccination Record Card;
- a copy of medical records documenting the vaccination;
- a copy of immunization records from a public health, state, or tribal immunization information system; or
- a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. However, we suggest that you require the employee to do some digging before relying on an attestation.

Employer Support for Employee Vaccination:  The ETS requires covered employers to (1) provide paid time off to employees to get vaccinated and allow for the use of paid sick leave; and (2) recover from side effects experienced following any primary vaccination series dose.  Employers cannot require employees to use paid time off from an existing PTO bank for the purposes of vaccination.  The ETS calls for up to four hours of paid time off for vaccination per dose.  As we previously explained, it is unlikely that employers have to pay for employee travel expenses to and from the vaccination site.

Employees who cannot work as the result of vaccination side-effects should be allowed to use up to two days of paid sick leave, if it is available.  If no sick time is available, the time off is unpaid.  An employer may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.

Face Coverings:  Employers covered by the ETS must ensure that all employees who are not fully vaccinated wear face coverings when indoors and when occupying a vehicle with another person for work purposes, except in limited circumstances. When an employee is alone in an office (or other room as long as there is floor-to-ceiling walls and a closed door) the employee is not required to wear a face covering.  Employees can also briefly remove their face coverings when eating, drinking, or for identification purposes. If the employee is wearing a respirator, the employee does not need also need a face covering. Face coverings are also not required when the use of face coverings is infeasible or creates a hazard that would excuse compliance, which would be the employer’s burden to prove.

Importantly, what many of us may have considered as an adequate face covering may not be consistent with what will be required. Face coverings must be made with two or more layers of fabric that do not let light pass through when held up to a light source.  If an employee wears a gaiter, it must have two layers or be folded over into two layers. This may be a change for some employees who wore “homemade” single-layer face coverings.

Other Items Required by January 10, 2022:  The ETS also has compliance obligations surrounding removal of COVID positive employees from the workplace, which employers are probably already on top of.  There are also employee notice obligations baked into the ETS.  In particular, the written policy described above needs to be distributed to your entire workforce, along with information about COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated (by providing the document, “Key Things to Know About COVID-19 Vaccines”).

With the Supreme Court hearing argument on the ETS today, we expect to get a ruling on the legality of the rule soon.  Given that the fate of the “shot-or-test” rule is now in the hands of the Supreme Court, it seems unlikely that OSHA will cite employers for noncompliance with the ETS before the Court issues a decision.  Even so, employers covered by the ETS should be prepared in the event that the Court sides with the Biden Administration and confirms OSHA can implement and enforce the ETS.