January 5, 2021
BY BROOKE LENNEMAN
I. Applicability to State and Local Government Employers:
The federal vaccine mandate is being implemented and enforced via an Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) (“COVID ETS”).
The COVID ETS mandates that employers with 100 or more employees require their employees to either be fully vaccinated against COVID-19 or wear masks and get tested regularly.
The COVID ETS applies to all entities subject to OSHA’s authority, which generally is limited to private sector employers.
Contrary to what at least one statewide local government advocacy group in Illinois has reported, the COVID ETS does not directly apply to state and local public employers.
However, 26 states, including Illinois, have adopted OSHA-approved state plans (“State Plans”). State Plans are individual occupational health and safety programs operated by the states. State Plans are required to cover both state and local government employers and promulgate rules “at least as effective” as the federal OSHA rules.
When OSHA issues an ETS such as its COVID ETS, state plans are required to issue a State Plan ETS identical to, or at least as effective as, the OSHA ETS within 30 days. Note that the State Plan ETS may be more stringent than OSHA’s ETS. The Illinois Department of Labor (IDOL) is responsible for the Illinois State plan and will prepare and issue the State Plan ETS.
II. Status of Legal Challenges to the COVID ETS:
On November 15, 2021, the 5th Circuit Court of Appeals stayed the COVID ETS, which also stayed the preparation of the State Plan ETS. On December 23, 2021, the 6th Circuit Court of Appeals, hearing the consolidated challenges to the COVID ETS, vacated the stay. The dissolution of the stay did not resolve the underlying legal challenges, which the 6th Circuit will continue to review.
In the meantime, the challengers have filed multiple emergency stay applications with the Supreme Court, which will hear oral arguments on the applications this Friday, January 7, 2022. The Supreme Court, however, declined to reimpose a stay of the COVID ETS pending its decision so there is currently no legal restriction preventing OSHA and the states from proceeding with implementation and rulemaking related to the employer mandates
III. Implementation and Enforcement of the COVID ETS and State Plan ETS:
With the stay lifted, the COVID ETS is currently in effect, and OSHA is moving forward with its implementation and enforcement. While the COVID ETS required compliance by January 4, 2022, given the delay in implementation and the legal uncertainty, OSHA has stated it will not issue citations for noncompliance with the COVID ETS before January 10, 2022.
Note here also that contrary to what at least one statewide local government advocacy group in Illinois has reported, the January 10 deadline does not apply to local government employers since they are not subject to the COVID ETS.
OSHA has given the states with State Plans until January 24, 2022 to issue the State Plan ETS. IDOL has resumed its preparation of Illinois’ State Plan ETS and intends to issue the State Plan ETS and associated guidance on or before the January 24, 2022 deadline. It is anticipated that, because the State Plan ETS will likely be nearly identical to the COVID ETS and follow the same timeline for compliance, the deadline for compliance with the State Plan ETS will be 30 days after it is issued.
Therefore, Illinois public employers with 100 or more employees should prepare to implement the vaccine mandate and testing requirements required by the State Plan ETS by the anticipated deadline of February 23, 2022. Note that the February 23, 2022 deadline is only the presumed deadline, has not been officially announced, and is subject to change.
Local government employers to which the State Plan ETS will apply must take steps now (before the State Plan ETS has officially be issued) to be able to meet the expected compliance deadline. Since the State Plan ETS will, at a minimum, mirror the COVID ETS, applicable local governments should review the COVID ETS to make sure their vaccine mandates and testing programs will satisfy the requirements.
Please reach out to any Elrod Friedman attorney with any questions.