Unless you’re living under a rock, you know that the Supreme Court blocked OSHA’s vaccine-or-test emergency temporary standard from being enforced for the foreseeable future.
Does this mean employers’ compliance to-do lists no longer exist? As is typical with lawyers, my answer is: “It depends.” This will touch on what happened earlier this month and conclude with a practical five-step priority list to guide companies going forward.
Technically, the Supreme Court didn’t kill the ETS, but its long-term prognosis looks worse than Jimmy Garoppolo’s future with the 49ers. The court reapplied the temporary injunction that once again blocks OSHA from enforcing the ETS for the time being while the parties continue to battle in lower courts over whether the emergency rule is valid.
Step 1: Complete administrative obligations
If the ETS comes back online in the coming months, or if OSHA issues a permanent regulation along such lines, the agency will surely take an aggressive approach to enforcement. OSHA will most likely indicate that it expected employers to develop their compliance approach during this limbo period and be at the ready to launch their efforts immediately. For this reason, the most conservative approach is to continue work on the following key administrative obligations:
Create a roster. Employers can gather information on their workers’ vaccination status and develop the required roster that notes whether each person is fully vaccinated.
Develop policies. Employers can choose to develop vaccination and/or testing policies, which should be adapted to their own unique workplaces.
Educate employees. Employers may want to develop programs that allow them to conduct compliance training for managers and deliver information about the policies to employees.
Step 2: Decide whether to impose a mandate
The next step for employers is to decide if they want to require vaccinations for their workplaces. For most employers, in most areas, it is still permissible to impose their own such mandate. But while the law may be squarely on their side, it is important to consider issues relating to vaccination mandates before acting. Accordingly, while most employers can require employees to receive the vaccination in order to remain in the workplace, such a policy should not be adopted before consideration of six important actions.
Identify known concerns among one’s workforce and provide information to help employees understand how vaccinations can reliably promote health and safety for themselves, co-workers and others.
Although accounting for one’s unique business environment, figure out the best way to communicate the policy to employees, including how much notice to provide before implementing the requirement.
Consider related logistics, including compensation issues that may be implicated.
Develop a robust and clear reasonable accommodation policy to address religious and disability issues, while taking special care to communicate and administer the accommodation process in a thoughtful way, with emphasis on individualized, confidential consideration of each request.
Spend time considering how one’s employees, customers and other constituents are likely to respond to the policy, as well as how they will be handled.
Assemble a designated team for coordinating this entire process.
Step 3: Consider creating safety obligations for non-vaccinated employees
Employers can also require employees who do not prove their vaccinated status to comply with additional safety restrictions, or testing, as necessary to maintain a safe working environment. These can include masking requirements, social distancing rules, restrictions on business-related travel, and other restrictions relevant to the work environment. These requirements should be announced beforehand so it does not appear as if certain workers are being targeted. Craft policies thoughtfully, with regard for the specific workplace, and in coordination with workplace law counsel, to avoid any potential perception that the rules are punitive or coercive.
Step 4: Consider imposing a health insurance surcharge for non-vaccinated workers
Like a nicotine surcharge that many employers already have in place as part of their wellness programs, an additional surcharge on health insurance premiums can be imposed for people who are unvaccinated.
Before considering any health insurance surcharge, reach out to counsel to gain a full understanding of state and federal laws regarding this option.
Step 5: Keep vaccine incentives in mind
The final consideration falls into the “carrot” category (foregoing any “stick”) – offering incentives to any workers able to prove they are fully vaccinated. The most common incentives that employers have offered include cash, gifts or paid time off. Thanks to clear guidance from the EEOC, there are simple directions to ensure employers don’t run afoul of any discrimination laws if they decide to offer incentives:
If employees voluntarily provide documentation confirming they have been vaccinated and got the shot on their own from a pharmacy, public health department or other health care provider in the community, the employer can offer any incentive – with no apparent limitations.
If an organization (or an entity acting on the organization’s behalf) administers the vaccine, it can still offer incentives – but they cannot be so substantial in value as to be considered coercive.
Now isn’t the time to rest on one’s laurels, because the ETS mandate could return … just like that.