The Commissioner of the North Carolina Department of Labor announced on November 10, 2021, that his department will not adopt or enforce the new OSHA Emergency Temporary Standard for COVID-19 protection and prevention issued last week by the U.S. Department of Labor until all of the current lawsuits challenging the ETS have been resolved. Numerous lawsuits have already been filed in federal court challenging the constitutionality and validity of the ETS, and in light of this, Commissioner Josh Dobson stated that North Carolina would neither adopt nor enforce the new standard at this time.
North Carolina is one of 26 states which provide their own OSHA-approved workplace safety and health programs. Those programs are monitored by the U.S. Department of Labor. They are required to be at least as effective as the federal OSHA standards. Federally issued standards are not applicable to North Carolina employers until adopted by the NC Department of Labor.
Last week, the U.S. Department of Labor issued the ETS to address what was characterized as “grave danger” unvaccinated workers faced from workplace exposure to the virus. The ETS covers private employers with 100 or more employees as well as some governmental employers. The ETS requires covered employers to choose whether to adopt a mandatory vaccination policy or a policy that permits weekly testing in lieu of mandatory vaccination. Employers are not required to pay for employee COVID-19 testing or face coverings. The ETS requires covered employers to publish their policy and specified information to employees by December 4, 2021, and to implement the vaccine and/or testing policy no later than January 4, 2022. The ETS requires covered employers to undertake a number of other actions, including the following
- Obtain proof of vaccine status from all employees
- Require masking for unvaccinated employees
- Maintain records on weekly testing for unvaccinated employees who are required to be tested. Employees who work 100% remote, or who work exclusively outdoors are not required to be tested.
- Remove employees who test positive or fail to comply with testing from the workplace
- Provide up to four hours of paid leave for employees to get the vaccine
- Provide paid time off (which can be existing sick leave or PTO) for any time required to recover from vaccine side effects.
The decision by Commissioner Dobson means that, at least for the time being, businesses in North Carolina that are regulated by NC OSHA are not under a legal duty to adopt or implement policies that conform to the ETS. Employers remain, however, under OSHA’s “general duty” requirement to provide workplaces free from recognizable safety and health hazards. Additionally, local government entities and private businesses that contract with federal agencies or are recipients of federal funding should carefully review the terms of their contracts or funding agreements to determine if those arrangements create a separate requirement to comply with a standard developed and adopted by the U.S. Department of Labor.
Employers should not assume that the OSHA ETS will never become applicable in NC. The legal challenges now pending could be resolved quickly, and if the ETS is upheld, it could become applicable in North Carolina with very little advance notice. At a minimum, prudent employers should consult with counsel to evaluate the steps necessary to get into compliance and formulate a plan on how they will handle the logistical and administrative challenges that the ETS will create if it becomes applicable. Poyner Spruill’s employment lawyers have broad experience guiding employers through the various legal issues related to vaccine mandates, the confidentiality of vaccine records, evaluating accommodation requests, and implementing widespread testing.