On Jan. 13, 2022, the Supreme Court of the United States (SCOTUS)
ruled to halt OSHA’s COVID-19 vaccination and testing emergency temporary
standard (ETS). This means that employers are no longer required to develop
COVID-19 vaccination or testing policies for their workplaces. However,
employers may still want to take steps to reduce potential COVID-19 exposures
for their employees. This article provides more information about the current
status of the OSHA ETS and ongoing COVID-19 safety considerations for
employers.
OSHA ETS Litigation Overview
OSHA issued the COVID-19 vaccination and testing ETS on Nov. 5,
2021, for private employers with 100 or more employees. Since then, the ETS has
been through a series of litigation. First, the 5th U.S. Circuit Court of
Appeals granted a stay for the ETS. Then, the 6th U.S. Circuit Court of Appeals
removed the stay. Most recently, the SCOTUS decided to reissue the stay,
officially halting the ETS for the time being.
Employers have had to deal with much litigation surrounding the
implementation of the ETS. For now, since the ETS is not required, employers
can decide on their own if they would like to implement a COVID-19 vaccine
mandate, conduct weekly testing or do neither. Regardless of the ETS, employers
must remember that if OSHA inspects their business and discovers safety or
health issues related to COVID-19, the agency can still issue citations under
the general duty clause.
OSHA emphasized this after the SCOTUS made its ruling to halt the
ETS. The agency released the following statement:
“Regardless of the
ultimate outcome of these proceedings, OSHA will do everything in its existing
authority to hold businesses accountable for protecting workers, including
under the COVID-19 National Emphasis Program and General Duty Clause.”
Furthermore, although OSHA does not currently mandate the ETS
requirements, it is important for employers to determine whether any applicable
state or local laws require them to implement COVID-19 vaccination rules.
Can the OSHA ETS Return?
The SCOTUS did not permanently get rid of the OSHA ETS. The stay
that has been issued is temporary in nature; OSHA could bring back the ETS
through a permanent rule, which the agency has already started to implement and
is currently in the comment period. If the permanent rule for the ETS gets
finalized, it would likely be met with further litigation. In other words,
although the ETS has not been ultimately struck down, the prognosis of future
ETS implementation remains uncertain.
Amid this evolving ETS landscape, employers are encouraged to
stay updated on their current requirements. They should also continue to
utilize health and safety measures to minimize COVID-19 cases in the workplace
and prevent potential exposures.
Determining a COVID-19 Vaccination Policy
Considering the current state of the OSHA ETS, employers should
determine what their specific policies will be regarding COVID-19 vaccination.
In particular, employers need to decide whether they plan to issue vaccine
mandates in their workplaces or have policies for preventing and responding to
COVID-19 exposures. Employers are able to require all employees who physically
enter the workplace to be vaccinated against COVID-19 so long as they provide
reasonable accommodations under the Americans with Disabilities Act and Title
VII of the Civil Rights Act of 1964. In any case, employers should remember to
check their state and local requirements to ensure any policies they adopt are
compliant.
Key questions employers should consider when determining whether
they should implement a COVID-19 vaccine mandate include:
·
What does the workforce think about the mandate?
What are the general concerns employees have with a vaccine mandate?
·
How will the mandate be introduced to employees?
Will there be an informational session to address any questions or concerns
employees may have prior to mandating the vaccine?
·
How will exemption requests for religious
concerns or disability issues be handled? Will these issues be addressed
consistently and in a timely fashion to prevent any legal issues?
·
Will the mandate create difficulties in
retaining employees or motivate employees to seek other employment with
businesses that don’t require the vaccine?
·
Will any employees need to be hired to deal
exclusively with all COVID-19 related policies, or can the HR team handle any
questions, concerns and issues that may arise from such policies?
If employers decide against a vaccine mandate, they should make
sure they have effective health and safety policies and procedures in place to
protect their unvaccinated employees. Doing so can help create a safer
environment for all workers. Some COVID-19 safety precautions to consider
include the implementation of physical distancing expectations, face-covering
requirements and weekly COVID-19 testing.
If employers decide to require weekly testing, they can use the
OSHA ETS as a guide for keeping records as well as developing and implementing
such a policy. Some matters employers should examine when requiring COVID-19
testing include:
·
Whether tests are readily available
·
Who will manage testing procedures
·
What recordkeeping processes are required for
collecting test results
·
Whether recordkeeping processes are compliant
with applicable regulations
·
Whether employees are able to obtain tests in
the areas in which they live (if the tests are not provided at work)
These are all important factors for employers to review before
introducing COVID-19 testing requirements into the workplace. Employers should
carefully weigh the pros and cons of each factor before making a final
decision.
Vaccine Incentives
If employers decide to encourage employees to receive the
COVID-19 vaccine instead of requiring it, they may want to consider providing
vaccine incentives. Some common incentives include monetary bonuses or
additional paid time off. According to the Equal Employment Opportunity
Commission, employers are permitted to provide these incentives to their
employees. Employers are not limited or prevented from doing so, provided that
employees voluntarily provide documentation or other confirmation of their
vaccination status from a third-party provider.
To clarify, employers are permitted to offer vaccine incentives
as long as they are not coercive in nature. Since the vaccination process
typically entails employees filling out pre-vaccination questionnaires,
providing significant incentives could make employees feel pressured to provide
medical information they may not want to share. It’s also important to note
that employers cannot offer incentives to employees to have their family
members get vaccinated.
Health Insurance Considerations
Apart from implementing COVID-19 vaccine mandates or incentives,
employers may want to consider placing a surcharge or higher premium costs on
their health insurance plans for employees who choose not to get vaccinated.
This practice has been utilized to discourage other activities among employees,
such as smoking. However, employers must ensure that any changes in health
insurance offerings related to vaccination status are compliant with applicable
federal, state and local employment laws. Specifically, employers should be
aware of potential violations of the Health Insurance Portability and
Accountability Act and the Affordable Care Act. Above all, it’s crucial for
employers to do their research on laws and regulations they must follow to
prevent violating employee rights.
Conclusion
Regardless of any future developments with the OSHA ETS, there
are a range of different measures employers should consider to help prevent or
reduce COVID-19 exposures in their workplaces. However, it’s vital for
employers to understand the legal implications of each policy they put in place
and make sure they are not violating employee rights when doing so.
Contact Better Business Planning, Inc. today for additional
COVID-19 updates and workplace resources.