OSHA vaccine mandate undergoes litigation

The U.S. Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring employers with more than 100 employees to develop, implement and enforce a policy that demands full vaccination against COVID-19 or regular weekly testing with mandatory face coverings.

The ETS requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects. However, employers are not required to pay the costs of testing unvaccinated employees or for face coverings.

It also requires employers to keep documentation of employee vaccination status, testing results and policies.

Legal challenges

OSHA suspended all implementation and enforcement activities related to the ETS after the U.S. Court of Appeals for the 5th Circuit issued a stay on the measure. 

OSHA is seeking to lift the stay. The 6th U.S. Circuit Court of Appeals will hear the legal challenges to the ETS and decide whether to uphold the stay. 

The National Propane Gas Association (NPGA) is formally contesting the ETS alongside other interested parties, such as the American Trucking Association, the National Association of Wholesaler-Distributors, the International Warehouse and Logistics Association, the Food Industry Association, the National Association of Convenience Stores and the National Retail Federation. 

NPGA says it is not challenging the value or efficacy of COVID-19 vaccines but rather that NPGA members have taken extraordinary measures to protect the propane industry’s employees, customers and communities during the pandemic. This mandate could result in lost employees, high compliance costs and worsening supply chains and labor markets, it says.

Rulemaking process

As litigation proceeds, a normal rulemaking process that would finalize the terms of the ETS continues. 

The rulemaking process requires OSHA to gather comments from stakeholders. OSHA has extended the deadline for comments from Dec. 6, 2021, to Jan. 19, 2022. The additional 45 days allows stakeholders to review the ETS and collect information and data necessary for comment, says OSHA. 

NPGA has issued a survey to members to identify concerns with the terms of the ETS and craft a response to OSHA as part of the normal rulemaking process. NPGA encourages members to complete the survey to better inform its response. 

What marketers can do

NPGA encourages propane marketers that fall under the scope of the ETS to prepare for compliance now in case the status of the stay changes quickly. If the ETS holds up in court, implementation and enforcement of the ETS could follow right away. 

“The rulemaking process could finalize the ETS with OSHA holding off on enforcement until the litigation concludes, potentially lifting the stay or hold that is currently preventing OSHA from enforcing the ETS,” explains Sarah Reboli, senior director of regulatory and industry affairs at NPGA. “It’s possible that the court or OSHA provides some sort of grace period, but it’s also possible that the ETS is enforced swiftly. It’s difficult to predict with so many pieces moving at the same time.”

NPGA recommends propane operations that might be impacted should consider developing policies, establishing record-keeping procedures and communicating with employees to prepare for the possibility of swift enforcement.

However, propane companies may have different approaches to the ETS depending on culture, concerns and operational style, adds Reboli. 

If the standard is enforced, marketers can expect heavier-than-usual penalties and fines for noncompliance. Unlike other OSHA violations, penalties under this standard may be issued per employee, per facility, per day. Fines can total anywhere from $3,000 to more than $136,000, says NPGA.

Visit NPGA’s Member Dashboard for more information about how the ETS may impact propane operations. There, members can find NPGA’s guidance summarizing the primary requirements of the COVID-19 vaccination executive orders and answers to frequently asked questions, as well as additional government resources for federal contractors and subcontractors.