This just in: the Sixth Circuit Court of Appeals has lifted the preliminary injunction that had blocked the Occupational Safety and Health Administration’s (“OSHA”) emergency temporary standard (“ETS”) rule from going into effect. The Sixth Circuit’s decision has been appealed to the United States Supreme Court.
The ETS rule applies to all businesses in the United States with at least 100 workers. The ETS rule requires unvaccinated employees to start wearing masks indoors starting December 5 and requires all businesses with 100 or more employees to ensure workers are fully vaccinated by January 4 or for workers to submit a negative COVID-19 test weekly to enter the workplace. In light of the Sixth Circuit decision, OSHA has stated that it will not issue citations for noncompliance before January 10. Previously, we wrote about the ETS in more detail, but now, the question becomes: What should businesses do to comply with the ETS? The January 10 deadline is right around the corner.
- Determine if you are covered by the ETS.
The ETS only applies to employers with 100 or more employees. Included employees are: (1) full-time employees; (2) part-time employees; and (3) temporary employees. Employees are not counted if: (1) they are an independent contractor; or (2) they are a leased employee.
Remote employees are included in the count; however, the standard does not apply to them so employers can choose whether the vaccination or testing requirements will be enforced on remote employees.
- Work with counsel to develop an OSHA ETS Compliant Policy.
Under the ETS, employers must have a compliant written vaccination policy. The first step in compliance is drafting the policy. OSHA has a compliant policy available on its website, but for a policy that is both compliant and compatible with your workplace’s culture, it is best to work with counsel to draft a policy. A policy should address the following: (1) whether you will allow employees the option of weekly testing in lieu of vaccination; (2) whether you will pay for testing for employees; (3) what testing will be acceptable and where employees can be tested; (4) time off for the vaccine; (5) whether full-time remote employees will be excluded; (6) what vaccination documentation is required; (7) the time frame for employees to comply; (8) addressing an accommodation request system and timeline; and (9) the steps to be taken if an employee fails to comply, up to and including termination.
- Designate an employee or committee to be in charge of compliance.
The ETS requires thorough documentation and requires employers to communicate with employees about the ETS. Vaccination records of employees may be requested by OSHA. Further, employers will have to track who is and is not vaccinated and the unvaccinated employees’ weekly testing results if the employer allows employees to submit to weekly testing in lieu of vaccination. It is best to designate an employee, likely someone in Human Resources, or the entire Human Resources team, to be in charge of compliance, tracking, and collecting all necessary forms and documentation from employees.
The employee or committee should also provide the employees with information about the ETS, their rights and protections, and benefits of vaccinations. These communications are required by the OSHA ETS.
- Start surveying which employees are already vaccinated.
Employees may already be vaccinated regardless of the ETS. Once a policy is complete, employers should designate a set date for employees to submit their vaccination card or verify that they remain unvaccinated. Keep a copy of each employee’s vaccination card for documentation purposes. Further, maintain a confidential spreadsheet with each employee’s vaccination information or status.
- Prepare for staffing shortages while employees have time off for the vaccine.
Under the ETS, employers must provide four hours of paid time off for each vaccination dose that includes travel time. Employers must also provide a reasonable amount of time off for side effects. If the employee has paid sick leave, the employee must use the sick leave first. While this may seem like a small amount of time, during this time of year and during a worldwide supply chain shortage, this is no easy ask. Employers should work with counsel to brainstorm creative ways to prepare for missed work for employees to get vaccinated.
- Prepare accommodation forms.
Employers have two options: (1) require everyone to be vaccinated and create accommodations for individuals with disabilities under the Americans with Disabilities Act (the “ADA”) and religious accommodations for individuals with sincerely held religious beliefs that do not allow them to get vaccinated under Title VII of the Civil Rights Act of 1964 (“Title VII”); or (2) allow the employees to choose between being vaccinated or submitting to weekly COVID-19 testing. Choosing option 2 would please more employees, however, option 2 is a logistical nightmare for the employer. Employers should take time to consider which option is right for their business and consult counsel. If option 1 is selected, employers should have standard accommodation forms to give to employees who are seeking an accommodation. Using a standard form seeking the same information will allow employers to remain unbiased when choosing to grant or deny an employee’s individual accommodation request.
- Remember documentation is key.
Under the ETS, OSHA may ask for employees’ vaccination records and the employer’s written vaccination policy. Employers must provide OSHA with the employees’ vaccination records within twenty-four hours and provide the employer’s written vaccination policy within four hours. This is why documentation is key so that the employer can be prepared for a random request from OSHA and avoid citations.
It is more important now than ever to work with counsel to prepare for compliance with the OSHA ETS.
Bugbee and Conkle, LLP is experienced in preparing COVID-19 vaccination policies for employers and maintaining compliance with all of OSHA’s requirements.