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The last two months have been a rollercoaster for private employers with over 100 employees because of the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS). Many believed the standard was completely dissolved after the Fifth Circuit Court of Appeals stayed the mandate back in November, but this was a mistake. Now that the ETS is reinstated and enforcement begins on January 10th, employers are scrambling to be in compliance with the mandate. We spoke with attorneys and experts in the field to calm the nerves of employers and find solutions for the best ways to comply, but first a quick update on the last few months.
On November 5th, 2021, the OSHA published its ETS that mandated employees to either get fully vaccinated for COVID-19 or submit weekly testing for employers with more than 100 employees. The next day, the Fifth Circuit Court of Appeals temporarily stayed the ETS to allow petitioners to challenge the mandate. Fast forward a month, the Sixth Circuit Court of Appeals has now dissolved the stay and enforcement of the mandate will begin January 10th, 2022. The Supreme Court has agreed to hear oral arguments about the ETS on January 7th.
After interviewing multiple subject matter experts, the assumptions for the results of the Supreme Court hearing are split down the middle. In the case that the vaccine-or-test mandate stays into effect, we asked these experts for solutions to help employers stay in compliance.
What should Employers know about the Emergency Temporary Standard?
Even though the ETS is reinstated on January 10th, 2022, OSHA will not be enforcing the weekly testing for employees that are not vaccinated until February 9th, 2022. Carrie Hoffman, Partner of Foley & Lardner LLP, represents and counsels major employers nationwide in labor and employment law gave us a list of obligations employers comply with by the first reinstatement date, ”OSHA will be issuing citations under the ETS starting on January 10, 2022. Specifically, employers must by that date:
Develop a compliant COVID-19 policy
Collect vaccination records as set forth in the ETS
Provide employees their vaccine policy and clearly communicate information about the safety and efficacy of the vaccines
Provide paid time off (up to 4 hours) to be vaccinated, and allow paid sick leave for recovery from any vaccination side effects
Require face coverings for anyone who is not fully vaccinated
Require employees to promptly disclose positive COVID-19 test results or diagnosis.”
Navigating the more than 490-page OSHA Emergency Temporary Standard is a difficult task for anyone that isn’t verse on OSHA Law, but Carrie’s breakdown of the 6 obligations for employers as of January 10th is a great first step to stay in compliance.
How should employers go about testing employees that haven’t been vaccinated?
Administration of the test are the biggest worry we hear from employers. Understanding that the ETS allows either a qualified testing facility or employee self-administered tests that are proctored by the employer or an authorized telehealth proctor, finding a cost effective way to stay in compliance is a must for employees over the 6 months of the ETS. Travis Rhoden and Dolly Clabault, both Senior Editors of J. J. Keller & Associates, Inc. an OSHA Workplace Safety Consulting Firm, provide a solution to self-administered testing, “OSHA says that the tests can’t be both self-administered and self-read. Employers can get around this by using over-the-counter tests that produce a digitally read date and time stamped result (e.g., results available through an app, QR code, RFID). This type of test is not considered to be “self-read” under the ETS and therefore would not require observation by an employer or an authorized telehealth proctor to satisfy the requirements of the ETS.” While employers are worried for the safety of the employee that must proctor the COVID-19 test due to becoming ill themselves, the digitally read tests is a great solution, while saving on the cost of paying an authorized telehealth proctor to review each test.
Should employers require employees to pay for the weekly testing?
“While the ETS does not require employers to pay for weekly testing in the event an employee chooses that option, there are several states that require employers to pay for the testing.” Said Jennifer Trulock, Labor & Employment Lawyer of Bake Botts LLP. The decision to require employees to incur the costs of the weekly test is up to the employees and should align with the employer’s goals. Trulock continues, “if the goal is to drive the entire workforce to become vaccinated (other than those employees who have accommodations), then the employer may want to refuse to pay for testing. If the employer is concerned about losing employees who will never agree to become vaccinated and who will go work elsewhere rather than pay for weekly testing, then the employer should consider paying for or subsidizing testing.” While most of the experts we spoke with recommended the employer pay for the weekly tests because of the current conditions of the workforce, this decision is completely up to the employer, not including the states that require it.
What’s the best solution to track employee vaccination status and those who decide to weekly test?
Solutions for tracking employee vaccination status and weekly tests are completely determinate on the current workforce and financial resources of an employer. Typically, small employers will have less of an administrative burden, but will have fewer financial resources to allocate managing the recordkeeping than a large employer. Employers can manage the recordkeeping in-house with their own reporting, purchase a software, or outsource the reporting to a vendor. Regardless of how an employer decides to track employees, they must be able to present the reporting quickly to OSHA when requested. “The employee’s own records and aggregate reports on workforce vaccination status must be provided by the next business day – not only to OSHA, but also to any employee or employee representative who asks for it.” Stated David Miller, Esq., Labor and Employment Attorney with Bryant Miller Olive P.A.
With the Supreme Court hearing coming up in the next few days, we will have more of an understanding of how the Emergency Temporary Standard will affect private employers. But, until then, employers must show a good-faith effort that they are trying to implement the ETS by January 10th, so they aren’t at risked of being fined. Use these solutions from the subject matter experts to help your company stay in compliance.