On November 4th, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) in an effort aimed to reduce the transmission of COVID-19 in the workplace. The ETS stated that companies or organizations with 100 or more employees would need to implement a COVID-19 vaccination program. Additionally, employers would be responsible for logging their employee’s vaccination status. In cases where an employee was not vaccinated, that employee would have to complete a COVID-19 test weekly.
Not long after the ETS was published, there was a great deal of pushback against it from various states and public officials. Twenty-six states have filed suits to challenge the standard. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the ETS. The court ordered that OSHA "take no steps to implement or enforce the ETS until further court order." OSHA has suspended the implementation and enforcement of the ETS pending future developments in the litigation. The case will be heard in the Sixth Circuit. The date of the hearing has not yet been scheduled.
What does this mean for your company?
While there is currently a stay of the ETS, it does not mean that it may not come to fruition in the future. While litigation continues, the standard will not be enforced, however, if the OSHA mandate is passed in the circuit court, or later in supreme court, companies would need to comply. Most likely, this will affect the original January date of enforcement and it will be delayed until the outcome of the litigation is known.
Should you continue with your COVID-19 protections program?
If the ETS passes, the burden will be on employers to act and move quickly to establish a program for all their employees. While the standard is in limbo, it gives companies time to reflect and plan what policies they may want to enforce. You do not have to implement this program while litigation continues, but it is a good time to at least start placing your ducks in a row, particularly if you have a large workforce. Considerations about what type of program you will implement, how you will log and maintain your employee’s personal health information, and how to handle time off for testing and positive results are all components you can contemplate now. However, if you do choose to move forward and implement vaccination programs in the interim, it is prudent to check your state guidelines, as some states have implemented protections for unvaccinated employees.
How should you implement your program?
One of the most complicated issues for companies is deciding what kind of program to organize; a companywide vaccine mandate, or a policy that combines vaccinations and weekly testing. While it may appear that mandating vaccination across the board is the easiest option, they are a hot button topic. All your employees may not feel comfortable receiving the vaccine. On the other hand, the administrative costs of testing can take its toll. When incorporating testing, you have to plan for additional time, and/or team members to review and maintain test results.
Regardless of the plan you choose, employers need to help ease tensions within their company. Do what you must do legally, but find a way to empathize, unify your workforce, and cultivate a culture of safety.