On January 25, 2022, the Department of Labor and OSHA announced it withdrew the COVID-19 Vaccination and Testing; Emergency Temporary Standard (ETS) for employers with 100 or more employees. The withdrawal takes effect on January 26, 2022, and OSHA legal case with the U.S. Court of Appeals, Sixth circuit is no longer active.
A Permanent COVID-19 ETS is On the Way for Health Care Workers
Although OSHA is withdrawing the enforceable parts of the COVID-19 ETS, like the vaccination and testing, it is not withdrawing the ETS as a proposed rule. With the proposed rule still active, OSHA will pursue finalizing a permanent COVID-19 Health Care Standard.
What Should You Do?
KPA continues to recommend businesses develop a plan and communicate how to best protect employees and others from COVID-19 in the workplace.
Though the ETS has been withdrawn, some businesses may still elect to require vaccinations. As you consider updates to your guidance and policies, and for those evaluating vaccine or testing requirements, below are topics to consider:
- Policies. What are you going to require at your workplace? Consider the vaccination, masking, testing, and time-off policies and review how you will implement, address accommodation requests, etc. Work with local legal counsel to create your policies.
- State and local regulations. Familiarize yourself with local and state requirements that will impact your business policies; these may vary greatly based on the location of your business. Consult with legal counsel to help ensure your business is compliant.
- Testing. Employers should be reasonable when requiring testing or vaccinations, as with any policy, to avoid employee claims of unreasonable and unlawful conduct. Employers should not make it impossible for an employee to comply as this can be seen as discriminatory, retaliatory, and possibly creating a constructive discharge.Consider: Will you implement a testing requirement? If you’re opting for testing, identify how you are going to implement this. Depending on your state, employers may have employees pay for this testing (California has COVID-19 testing requirements). It is a best practice for employers to pay for testing and related supplies when employers choose to require employees to comply, even when the state allows such action as it reduces the long-term cost of related litigation and/or wage and hour claims. Will you use a third-party laboratory partner or telehealth partner? Which FDA-approved COVID-19 tests will you accept? Will you require verification of self-administered employee tests?
- Accommodations. Brush up on religious and medical accommodations regulatory requirements and devise a plan for how you want employees to file those requests.
- Roster. Maintain a confidential employee vaccination roster. Which employees are fully vaccinated? Who is partially vaccinated? Employers should not pursue why an employee is or is not vaccinated because this opens the employer up to potential claims of unlawful conduct. This line of questioning is not considered job-related or of business necessity.
- Time Off. Clarify your time off policies. Depending on state or local requirements, employers should provide reasonable time off for vaccination in compliance with local laws. Comply with payroll laws and providing paid time off and sick leave.
- OSHA Reporting. COVID-19-related deaths that more than likely stemmed from the workplace must be reported to OSHA within 8 hours. Report COVID-19 hospitalizations stemming from workplace exposure to OSHA within 24 hours.
KPA Is Here to Help
Employers are going to have different responses and scenarios; keep in mind that seeking advice from your general counsel may be your best option.
KPA has a COVID-19 Safety Program, with the right mix of software and compliance consulting that can help you manage the ongoing federal and state regulatory changes in the workplace. Our software solutions and compliance and safety consultants are here to help too. Contact us to learn more.
[This article was originally published November 5, 2021, and first updated on November 17, 2021, December 17, 2021, and January 14, 2022]