While many believe the OSHA Emergency Temporary Standard (ETS) is D.O.A. after the Supreme Court ruling, it may just be on another hiatus as forces regroup. As always, our go-to experts for all things HR is Fisher & Phillips and once again, they didn’t disappoint with this comprehensive analysis of where we are, where we could possibly go, and more importantly for our clients and friends who don’t receive payments from Medicare or Medicaid, what you need to be doing.
F&P analysts explain that the ETS was exactly that: temporary and designed to remain in place for six months until replaced by a permanent rule. It’s possible the permanent rule will be published on or before May 5th if the government continues along the mandate path. If that’s the case, the attorneys predict a more aggressive approach and tight deadlines. In the meantime – and anyway, really – F&P recommends that employers continue to work their 6-step priority list that includes:
- Administrative obligations, the first of which is developing an employee roster with vaccination status. F&P – employment law attorneys – assert that employers can indeed lawfully ask these questions of their employees and will not violate EEOC or HIPAA. The second admin recommendation is to develop vaccine and/or testing policies adapted to your workplace. Even if the government isn’t forcing non-healthcare companies to vaccinate, you can still elect to mandate these for your organization unless state law precludes it. (See next section) Some areas to include in your policy are requirements for COVID-positive employees and use of personal protective equipment on your premises. Last suggestion is to develop education programs to communicate policies to your workforce.
- Mandating vaccination or testing in your organization. F&P prepared a table that will help you understand any law regarding a vaccine mandate in your state.
- For example, in Florida, a private employer may impose a vaccine mandate, but “State Law Restrictions Apply. On November 18, Florida enacted a law banning private employers from mandating vaccination unless it offers and grants several enumerated, mandatory exemptions. However, the law is not an outright prohibition on vaccine mandates for private employers. Given the breadth of the exemptions, Florida employers will find it difficult to meaningfully implement vaccine mandates. Public employers may not institute a vaccine mandate, even if they offered the enumerated exemptions.”
- Among its many recommendations, F&P suggests you develop a “robust, clear and reasonable” accommodations policy that addresses religious and disability issues and consider how to communicate it and how your workers are likely to respond. Read their excellent primer on religious exemptions here.
- Creating safety obligations for the unvaccinated. Employers may implement environmental safety requirements, such as social distancing, use if PPE and other relevant guidelines. F&P suggests you make these known as soon as possible so that it does not appear as if you are targeting specific workers or giving the impression you are being punitive or coercive. It’s always wise to consult legal counsel to be sure your communications are worded properly.
- A testing requirement for the unvaccinated. F&P attorneys state that you can require regular COVID-19 testing of all non-vaccinated personnel as part of your company’s policy. Before setting your company policy, consider two things: 1) testing frequency you will require so that it’s effective in minimizing COVID outbreaks in your workplace but not punitive. Don’t forget to observe wage & hour laws; time spent on receiving employer-mandated tests is likely compensable. And 2) testing availability in your community. Lastly, be sure your policy has been communicated to all workers via a combination of methods and stress the purpose of the testing requirement is enhanced worker safety.
- A health insurance surcharge on the non-vaccinated. F&P experts that similar to a nicotine surcharge, you can tack on an additional cost to employee premiums.
- Incentivizing the behavior you want. Last year, we blogged that cash is king when it comes to incentivizing employees to be vaccinated. Consider also gifts and time off as valuable incentives. Just steer clear of discrimination laws by making sure that if your company administers the vax, your incentive is not coercive.