In the ongoing COVID-19 world, employers continue to face daily changes in lengths of quarantine, expectations of vaccinations and boosters, and availability and requirements for testing. In the midst of this, those employers who have over 100 employees have spent the last several months watching the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS), while it has been heard in multiple courts. Even after the 6th Circuit Court of Appeals lifted the stay on December 17, 2021, emergency applications were filed with the U.S. Supreme Court to establish the previous stay by the 5th Circuit Court of Appeals. The Supreme Court heard the arguments on Friday, January 7, 2022, and the Supreme Court ruling was announced on January 14, 2022 that the 5th Circuit Court of Appeals stay was reinstated. Since there was no Supreme Court ruling when the ETS took effect on January 10, 2022, employers who had delayed taking action began to hurriedly put policies and procedures in place for their workforces. While employers may now want to sit back and not take action, they are still urged to carefully rethink their current policies to determine if they are the best way to protect employees during this pandemic.
So, what was the ETS? It was an OSHA temporary ruling. Temporary rulings are valid for six-months, which allows time for a formal process before a final rule is established. The ETS stated that covered employees of employers with 100 or more employees must be vaccinated against COVID-19, or wear masks in the workplace and test on a weekly basis, if they do not work from home or work outdoors. It was based on OSHA’s general duty clause where all employers must provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Under the ETS, covered employers were to demonstrate compliance in the following areas:
- Give notification to all employees of the ETS requirements.
- Organize a system to begin to collect acceptable proof of vaccination from employees.
- Build a list of employees who have been vaccinated and employees who have not been vaccinated.
- Determine whether vaccines should be mandated or whether employees may be allowed the option to wear masks and test on a weekly basis.
- Verify appropriate confidential storage of vaccination and test information.
- Develop notification procedures when an employee who has been in contact with other employees test positive for COVID-19.
- Ascertain whether union bargaining commitments for discretionary and nondiscretionary portions of the ETS need to be considered, if employees are unionized.
- Begin testing by February, 9, 2022.
Now that the ETS has been stayed permanently, there is still information that employers need to know and act on that is related to the ongoing pandemic. This includes:
- Cost of At-Home Testing – The Department of Labor (DOL) has provided guidance that, beginning January 15, 2022, employer private insurance group health plans will be responsible to reimburse employees for over-the-counter (OTC) at-home COVID-19 tests for the duration of the public health emergency without any cost-sharing on behalf of employees. The insurance will either pay at the time of purchase or reimburse for at-home tests, whether or not tests have been ordered by a health care provider. Employers are required to cover through their health insurance plan up to eight tests each month for the employee. Any dependents that are on the health care plan are also eligible to receive up to eight tests. If a health care provider orders the test, there is no limit for the number of tests that will be paid for by the employer-sponsored insurance plan.
- Additional Paid Time Off for Vaccinations – The Department of Labor (DOL) states that, under the Fair Labor Standards Act (FLSA), employers who mandate vaccinations must provide paid time off for an employee’s time spent getting vaccinated during working hours. Employers may not require that employees use their earned or accrued paid time off to get vaccinated.
- Recuperation Time Off – While the ETS would have provided time off for recuperation from the vaccination during working hours, employers are still encouraged to provide a reasonable amount of paid time off per vaccination for the recuperation of side effects. If the employee has paid time off or paid sick leave benefits, the employer may require the employee to use that for the recuperation period.
Employers should remember that they may still require employees to have the vaccination, test on a regular basis, wear a mask, or practice social distancing in certain localities as long as it does not go against state or local laws. In fact, the federal government is still encouraging employers to consider more stringent requirements for their employees, including having a vaccination mandate. Secretary of Labor, Marty Walsh said, “We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive guidance to help them uphold their obligation.”
Whether or not employers determine to mandate vaccinations or not, it is important that they think through the best way to protect their workforce, and have a written policy outlining their procedures, and what happens if employees are not in compliance. The Department of Labor (DOL), the Department of Health and Human Services (DHHS), and the Centers for Medicare and Medicaid Services (CMS) have all recently provided information and their own frequently asked questions and answers that provide more information on the at-home tests and other information employers will need.
Finally, as a reminder, multiple state and local governments have taken initiative and have enacted their own set of laws for their constituents. Currently a number of states have their own vaccination mandates, while other states are working through legislation against employers mandating the vaccination. Still other states and local governments have provided laws and regulations that may not specifically address employers and their workplaces, but affect employers. As an example of this, the Mayor of Chicago recently issued a new Public Health Order on top of the city’s ongoing mask mandate that mandates individuals five years and older to show proof of vaccination for indoor dining, or visiting gyms and entertainment venues where food or drink are serviced. As such, it’s important to know state and local government laws and regulations.
For additional information on this topic, please contact us at www.newfocushr.com.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant
- The U.S. Department of Labor (DOL) – https://www.dol.gov/general/topic/retirement/typesofplans
- COVID-19 and the Fair Labor Standards Act – https://www.dol.gov/agencies/whd/flsa/pandemic#7
- Department of Health and Human Services – https://www.hhs.gov/coronavirus/index.html
- Centers for Medicare and Medicaid Services – https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs
- The Center for Disease Control (CDC) – https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html