Advocacy News – September 28, 2021
Although there remain many unanswered questions about President Biden’s proposed vaccine mandate and questions about its fate, many human resources (H.R.) experts are encouraging employers to start thinking through how they might comply.
The Occupational Safety and Health Administration (OSHA) has not yet released its emergency temporary standard (ETS) requiring private employers with 100 or more employees to ensure their workers are vaccinated or tested weekly if unvaccinated. And although legal challenges are expected, it is unclear whether a court will intervene prior to its effective date. As such, it is advisable for employers to begin thinking through what might be required under the ETS and how it might be implemented in your workplace.
Here are some things to think through:
- Determining whether you meet the 100 employee threshold. The Biden Administration announced that all private employers with 100 or more employees will be subject to the ETS or their equivalent state standard. In Michigan, the Michigan Occupational Safety and Health Administration will be charged with issuing a state standard that meets or exceeds the requirements of the federal standard. OSHA officials have indicated that the 100-employee threshold will be based upon the employer’s total headcount versus the number of employees at a particular worksite. It is believed all employees will need to be counted, regardless of whether they are full-time, part-time or temporary. It remains unclear how the ETS will fluctuate headcounts, treat joint-employment situations and independent contractors.
- Working through how you might survey employees on their current vaccination status and thinking through testing logistics. The key to complying with the ETS is knowing which employees are and aren’t vaccinated. This will allow you to consider the logistics of the weekly testing requirements, including whether to require testing prior to a shift and/or during non-working hours or to implement on-site and, in either situation, who pays. (Note: It is still unclear which tests will be acceptable under the ETS. While the polymerase chain reaction (PCR) test is the gold standard test, it also takes longer. It remains possible that the ETS will allow the use of rapid tests [antigen tests] and/or home testing kits. If given the option, employers should think through which test they’d prefer).
While there continue to be a number of unanswered questions about the ETS and the Michigan Chamber continues to voice its opposition, it is wise to start discussing what compliance might look like for your workplace, develop a written policy and start communicating with employees. It is highly advised that you work with legal counsel as you begin developing your internal policy.