|Following the White House’s announcement of the “Path out of the Pandemic” COVID-19 Action Plan back in September, an Emergency Temporary Standard (ETS) was issued on November 5, 2021 by OSHA which obligated private employers with 100 or more employees to require vaccination or weekly testing/masking for their unvaccinated employees. In response, several states have filed lawsuits challenging the ETS, and the 5th U.S. Circuit Court of Appeals in New Orleans issued an emergency stay which temporarily blocked the mandate, saying it raises “grave statutory and constitutional issues”. The Department of Labor (DOL) says it plans to defend the new standard in court stating OSHA has the “authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.” Needless to say, this has caused a good amount of confusion for business leaders and HR professionals alike, especially in states such as Texas, Alabama, and Montana, where rulings have been put into place that directly conflict with the provisions of the federal ETS mandate. |
How should businesses approach their workplace vaccination policies in light of conflicting directives? When there are federal and state laws at play, the federal law will generally pre-empt the state law. Meaning covered employers will need to craft vaccination policies to comply with the new standard. Although the future of the ETS is currently unknown, it is still recommended that covered employers prepare for the upcoming deadlines while litigation is pending. It will take weeks of planning to implement a new vaccination policy, making it wise to prepare in case the standard survives the legal challenges so employers aren’t scrambling to meet deadlines at the last minute.
According to the mandate, covered employers are required to adhere to the following provisions:
1. All unvaccinated workers must begin wearing masks by Dec. 6, according to OSHA, and provide a negative COVID-19 test on a weekly basis beginning Jan. 4.
2. Employers must pay employees for the time it takes to get vaccinated and recover from any side effects that prevent them from working.
3. Companies are not required to pay for or provide the tests unless they are otherwise required to by state or local laws or in labor union contracts.
Employers not covered by the ETS should stay up-to-date on state and federal vaccination and COVID-19 laws that are currently in place, and any new requirements that may be issued in the future when creating company-wide vaccination-testing-masking policies to ensure they are compliant. Regardless of whether an employer falls under the parameters of the standard or not, any policies that are created should be well-documented and supported with appropriate employee communications and training.
Applied Business Solutions continues to monitor the status of the ETS and any legal ramifications which may affect our clients. Applied has solutions for tracking employee vaccination status. Please contact us for more information or with any questions or concerns regarding the vaccine mandate.
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