originally published in Law360 on November 11, 2021
On November 4, 2021, OSHA issued the long-awaited Emergency Temporary Standard (“ETS”), detailing President Biden’s COVID-19 vaccine-or-testing mandate for most large employers (with 100 or more employees).
Under the ETS, covered large employers must either:
(A) require their entire workforce to be fully vaccinated against COVID-19; or
(B) allow employees to choose whether to show proof of vaccination or get tested for COVID-19 and submit test results on a weekly basis. Employees who are not vaccinated must also wear face coverings in certain instances while working.
The ETS also requires employers to implement written policies and keep certain records, among other obligations. The ETS is designed to be a minimum safety standard at the federal level for most large employers, although there are other federal requirements for certain industries and state laws may be more stringent or conflict. Employees who work remotely, alone, or exclusively outside may have different requirements.
As we write this, the status of the ETS is fluid. It has already faced court challenges and more are likely coming. On November 6, 2021,, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS.
Additionally, the ETS is subject to comments from the public and potentially further revision by OSHA. We cannot predict what will happen next. Given the uncertainty, many companies are left wondering what to do.
To help businesses untangle the issues and chart a path forward, we’ve complied this list of tips for businesses grappling with what comes next.
- Plan, but with Flexibility
Many employers have whiplash from all the business, logistical, and legal challenges brought on by the pandemic.
Given the uncertainty of the situation, and since many of the compliance deadlines under the ETS are fast-approaching (starting as early as December 6), businesses should start considering and making strategic decisions now, so if the ETS (or some variation) goes into effect as scheduled, they’ll be prepared to roll-out policies and practices quickly. But things may change, so flexibility is key here.
- Remember That It’s Not a “One-Size Fits All” Approach
Many large employers have workforces in different states, and many states (including certain localities) have their own COVID-19 vaccine-related laws and guidance, which may supplement or conflict with the ETS. While the ETS states that it expressly preempts state and local laws and rules that are contradictory, even assuming the legal challenges are overruled, businesses and their attorneys may find themselves between a rock and a hard place when it comes to figuring out which law to follow (and which penalties they might face).
Also, employees who choose not to get vaccinated may have particular reasons that trigger legal considerations. Employers should be mindful to keep confidential records of any requested accommodations (disability or religious).
- Decide on a Testing Strategy
Many employers prefer to go with option B, allowing employees to regularly submit test results, because they fear losing valued employees. If employees request religious or disability accommodations, and testing is provided in those cases, employers may find themselves administering a testing program anyway.
But companies need to strategize and plan for all the complexities associated with testing. Employers need to determine: who is subject to testing, who administers the program, the timing of tests and collection of test results, which tests are adequate (ETS allows for over-the-counter antigen tests, but subject to certain guidelines), and how to retain these records securely and confidentially.
There are also open questions about the costs associated with a testing program. Although the ETS generally does not require employers to cover the actual cost of the tests, state or local laws may require otherwise. But the higher stakes question for employers will be whether to pay employees for their time spent undergoing testing each week. Companies should review and understand their obligations under federal, state and local law. If they are going to pay for the time employees spend getting tested, they will need to set up a way to properly capture and pay for it.
- Review (and Revisit) Safety Policies and Practices
At this point, many large employers already have a COVID-19 related safety policy in place, and some may even have an existing vaccination policy. Since the ETS imposes new requirements (such as mandating certain recordkeeping practices and illness-related procedures), covered employers should revisit their existing policies and practices against the latest changes, presuming they become effective. They should then continue to monitor any updates to the ETS and state and local policies.
- Keep the Lines of Communication Open
As we noted, since the pandemic began, the law is in a constant state of flux. Because many of these requirements put the onus on the administrative/human resources teams and the employees themselves, businesses should be flexible, keep communication channels open, and ensure everyone is aware of their respective responsibilities.
For this reason, we’ve long recommended that companies designate a key person or committee to be in charge of COVID-19-related developments. With guidance from employment counsel, this unit can set and maintain policies, oversee communications with stakeholders and employees, and implement what needs to be done for the workplace.
This ensures that when the rules change (and they likely will), companies aren’t scrambling to keep up.