Taking effect as soon as December 6, the Emergency Temporary Standard (ETS) written by the Occupational Safety and Health Administration (OSHA) will require all covered employers with 100 or more employees to either mandate their workforce to receive the vaccination against COVID-19 or test them weekly to ensure they are not infected.
The court’s decision and legal delay give employers a chance to re-examine how the ETS would affect their workplace, their readiness to implement the provisions if necessary, and the impact that associated policy decisions may have on the company.
As one OSHA official stated, “There may not be much of a runway to get ready if another court clears the ETS for immediate takeoff.”
Here are some recommendations for employers in taking immediate action:
- Confirm you are subject to federal OSHA ETS: Keep in mind that 22 states have “state plans,” where a state agency enforces its safety regulations apart from the federal ETS. An employer still could be subject to the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, the OSHA COVID Healthcare ETS, or the CMS Omnibus Staff Vaccination Rule, which requires vaccination (with no testing option) of individuals working at or for healthcare providers who participate in the Medicare or Medicaid programs and are regulated by CMS.
- Establish standby compliance policies: Be prepared to provide paid time off to employees for vaccinations and require unvaccinated workers to mask by December 6.
- Evaluate where you now stand regarding procedures on all the following policies:
- Establishing, implementing, and enforcing a written policy on vaccines, testing, and face coverings.
- Providing clear information to employees on vaccines and the requirements of the ETS.
- Preparing to provide paid time off to employees to obtain the vaccine and reasonable time and paid sick leave to recover from side effects following each dose.
- Obtaining and maintaining records and a roster of employee vaccination status.
- Complying with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
- Assess your level of risk tolerance: Whether and how you proceed is largely a matter of risk tolerance. Although other OSHA temporary standards have been struck down in the past, this is an unprecedented and unpredictable situation, and no one really knows how things will shake out in the coming weeks and months. Some employers may choose to sit tight until the courts provide clarification. In view of the detailed requirements, failure to begin preparing could be a risky proposition since potential fines are very large.
- Evaluate both legal and practical issues. Your policy choices obviously merit serious consideration. We all know employers are concerned about the strong feelings on all sides of the vaccination issue. During this period of workforce shortages, employers are anxious about the impact that a vaccine mandate could have on employee retention.
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