By Renee Mielnicki, Esquire
On September 9th, 2021, President Biden directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
Since it has been close to two (2) months since the President issued this directive, we expect OSHA to issue the ETS very soon. Below are action items employers should be taking to prepare for the pending ETS.
Review Whether the ETS will Apply to Your Organization
The ETS will apply to all private employers will 100 or more employees. According to OSHA, this threshold will apply companywide, rather than per worksite. We expect you will need to count all employees, including those who are part time, to determine coverage. The ETS should provide further details on threshold coverage including companies that are related but have separate FEIN numbers.
Be sure to consider the OSHA State Plan issue, especially if you are a public sector employer. The OSH Act, which is enforced by OSHA, is the Act under which OSHA has authority to issue the ETS. The ETS will take effect in the states over which federal OSHA has jurisdiction. The Act authorizes states to establish their own occupational safety and health plans which are approved by OSHA if those standards are “at least as effective” as the OSHA standards. State-approved plans may cover state and local public employers in states where they have been adopted. States with state approved plans are not bound by federal OSHA standards. However, such states will need to adopt their own ETS, which will need to be at least as effective as the federal ETS, within 30 days of OSHA’s Vaccination ETS’ publication. The states that have adopted state plans that cover private and/or state or local government employers can be found on OSHA’s website here: https://www.osha.gov/stateplans/.
It’s not clear yet if remote workers will be subject under the mandate. Federal workers are already required to vaccinate most of their remote workforce, but we suspect the ETS will allow those that are fully remote to be excepted from this mandate.
Survey the Vaccination Status of Your Workforce
Remember, the ETS will provide two options: (1) mandate the COVID vaccine for all employees (absent a medical or religious exemption); or (2) require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Federal law does not prohibit an employer from asking their employees if they are vaccinated, but employers should check applicable state law to ensure there is no such prohibition. Employers are permitted to survey their workers about their vaccination status and ask for proof of vaccination. You can also survey your unvaccinated employees regarding their feelings around the vaccine, specifically if they are inclined to seek employment elsewhere if forced to vaccinate. Once you have an idea of the percentage of your workforce that is vaccinated and their opinions around a potential mandate, this information will be useful in determining which option is best for you.
For instance, if 90% of your employees are already vaccinated, it may make more sense to require the remaining 10% to undergo weekly testing rather than require them to be vaccinated. Alternatively, if a large percentage remain unvaccinated, determining whether to require vaccination or weekly testing involves weighing the cost of testing, which will likely be placed on the employer, against the risk of resignations where vaccination is mandated, especially in light of worker shortages. Your decision may also depend on the nature of your business. For instance, if you are in healthcare, you may determine that the risk of infection is high and choose the vaccine rather than the weekly testing.
Gathering this data now should be made ASAP so your organization can make a decision and is prepared to implement its chosen strategy quickly.
Find a Vendor for COVID Testing and Factor Testing Costs into your Budget
Even if you decide to mandate the vaccine rather than require weekly testing, you may still have employees who cannot take the vaccine for medical or religious reasons. In these instances, it will be necessary to consider a reasonable accommodation to the vaccine, which will include the weekly testing option. We previously blogged about how to respond to religious exemptions to the vaccine and plan to draft a blog that addresses responding to medical exemptions in the near future.
For this reason, we suspect that all covered employers will need testing kits which will most likely make them in short supply. For that reason, it’s important to at least identify a vendor or two from which tests can be secured. Also, be prepared to address:
- Whether the tests will be given onsite and if so by whom;
- Whether the tests will be conducted by an off-site lab; and
- Whether you will permit employees to use home test kits and show proof of the results such as with an affidavit or a phone screen shot (assuming this will be allowed by the ETS).
As mentioned above, we expect the ETS will require the employer pay for any COVID testing. Since testing is required weekly, this can quickly add up, especially if you are a large organization. It’s a good idea to estimate a budget for testing now and include it in your financial planning.
Be Ready to Provide Paid Time Off
Don’t forget that President Biden’s directive has ordered that the ETS include a requirement for covered employers to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. Details have not been provided on this requirement yet but will be set forth in the ETS.
Prepare a Written Employee Communication and a Vaccine Policy
Once you have decided on your strategy to comply with the ETS, you should have both a written communication and a policy ready to provide to your employees which explains the requirements you have decided upon and the consequences if your employees fail to comply. The written communication should be an introduction to the policy that explains the background leading up to the implementation of the policy as well as its main requirements, such as mandating testing for all, requiring the weekly testing option for all, or only allowing the testing option for those with a medical or religious exemption. The policy should address which ETS option the employer has chosen, consequences for noncompliance, exceptions to any mandates for medical or religious objections, and procedural requirements such as where and how any testing will take place.
These documents can take some time to draft so it’s important to get a jump on them now, so they are ready to roll out when the ETS becomes effective.
When to be Ready if Your Organization is Covered by the ETS
Now. You should be ready now. The ETS will be effective as soon as it is published in the Federal Register. We expect that will be very soon. State OSHA Plans will have 15 days to announce the adoption of the ETS or announce an alternative. State OSHA Plans have another 15 days to make the ETS (or their own alternative) effective. Enforcement will begin after an expected short grace period for compliance lapses. Penalties for violations of the ETS would likely be considered either “serious” or “willful.” A serious violation is subject to a maximum penalty of $13,653 per violation. A willful violation can result in fines up to $136,532.
What about State Governors that have Banned Vaccine Mandates?
As most of us know, some conservative governors, such as Governor Abbott in Texas, have issued orders that ban employers from mandating the vaccine. Once the ETS becomes effective, there will be a conflict in the law. We suspect the ETS will address this issue by including language that makes the state orders null and void. In the interim, employers should comply with those state orders that prohibit mandating the vaccine. However, once the ETS comes out, employers will most likely need to comply with the ETS rather than state orders.
Possible Delays and Legal Challenges to the ETS
OSHA recently submitted its version of the ETS to the White House for review. However, business owners have asked the administration for a delay until after the holiday shopping season to implement the rule because they say the mandate could exacerbate labor shortages and supply chain problems. We have seen no information so far regarding a response to this request. If granted, this could mean employers will not need to implement the mandate until the new year.
We also expect there to be legal challenges to the ETS once its published. To explain a challenge we expect, some background is necessary. The Secretary of Labor is authorized to set rules that pertain to workplace safety. The Secretary must normally provide public notice and an opportunity for comment before any rule becomes effective. However, the law also allows the Secretary to bypass this normal notice and comment procedure and publish emergency rules, such as this ETS, and such rules can take effect immediately upon publication in the Federal Register. In order to bypass the normal procedures, the Secretary must determine that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that “emergency” action is necessary “to protect employees from such danger.” If such determination is made, such emergency rules can only be temporary meaning they are effective for six (6) months from publication. We think the grave danger standard will most likely be the major point of litigation and OSHA will rely on certain data to support the argument that it has met that standard. Opponents will argue the data does not support that claim citing arguments such as a decrease in infection rates, the number of non-serious infections v. death rates, etc.
You might remember from back in 2016 when a Texas Court granted a nationwide injunction that stopped the Department of Labor from implementing or enforcing a regulation that raised the salary level for white collar workers. If you’d like a refresher, click here for our previous blog article. One federal court stopped that regulation from ever coming into effect after employers nationwide spent time preparing for its implementation. This outcome is a possibility with the ETS as well.
However, don’t assume that the ETS will not become effective. Legal challenges can take quite a while to play out in the courts. As explained above, the rule, once published, will be effective immediately and employers will have a short time to comply. For that reason, its best to be prepared to implement the mandate right now since fines for noncompliance are steep.
We will keep an eye on the ETS as it develops and will publish future blogs on the topic to keep our readers informed.
If you are an employer with questions about any safety, workers’ compensation, or human resources issue, contact East Coast Risk Management by calling 724-864-8745 or emailing us at hrhelpline@eastcoastrm.com. We will be happy to help!
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