Note: This article went to press before OSHA’s emergency temporary standard was released. Check www.massemploymentbizlit.com/blog for updates.
On Sept. 9, 2021, President Biden announced a plan that would require all employers with 100 or more employees to mandate vaccination or weekly testing for its workforce. The Occupational Safety and Health Administration (OSHA) will issue an emergency temporary standard (ETS) in the coming weeks. We’ve put together a six-point plan to help businesses prepare for compliance.
- Determine Whether Your Business Is Covered
The ETS will cover all private employers with 100 or more employees. Businesses who hover near this threshold should begin counting their workforce. OSHA has indicated that the headcount will apply to each company as a whole, not just a particular office or job site. All full-time, part-time, and temporary employees should be counted. If your headcount fluctuates above and below the threshold, a safe approach would be to assume that the ETS applies.
Private employers with fewer than 100 employees should keep an eye on changes to federal, Massachusetts, and local laws. Vaccination may already be required for certain types of employers, such as federal contractors, state and city governments, healthcare organizations, or nursing homes.
- Survey Employee Vaccination Rates & Views
Knowing how many employees are vaccinated will inform your compliance strategy. If, for example, your business only has a dozen unvaccinated workers, weekly testing may be a viable option. On the other hand, a business with hundreds of unvaccinated workers might not be able to handle the administrative burden or cost of weekly testing.
Workplace morale and retention is also a consideration here. How do your employees feel about vaccination and testing? Would they quit if required to get vaccinated, but are willing to get tested? Will they refuse to get tested? An anonymous survey may provide helpful insights.
Decide Whether to Allow Weekly Testing Instead of Vaccination
This choice is highly dependent on your organization’s budget, capabilities, and culture. Consider the logistics of weekly testing. Will your business sponsor on-site testing? If not, where will employees go for testing? The hours, availability, and locations of convenient test sites should be confirmed. What about at-home test kits? Think about the lead time needed for employees to get negative results before they need to work. Understanding the different types of tests – rapid tests (which yield same-day results but may be less accurate) and polymerase chain reaction (PCR) tests (which are more accurate but take days for results) – will be important.
The ETS will likely address some of these issues, but it would be wise to start thinking about options for your business now.
- Decide How to Handle Time Off for Vaccination or Testing
Employers will likely be required to provide paid time off (PTO) for employees to get vaccinated and recover from any side effects of the vaccine. The ETS should clarify whether employers can require employees to use existing PTO. However, employers should start thinking about how to handle time off now.
If a testing option is offered, the time spent getting tested may be compensable under wage and hour laws. In Massachusetts, “working time” is time when an employee is required to be on an employer’s premises or any other location. If employees are required to get tested at a particular location and time, their time getting tested (and travel expenses) may be compensable.
5. Develop A Plan for Collecting, Storing Information
Employers will need to keep documentation showing their compliance with the ETS, which may include proof of vaccination and/or weekly test results. Employers are required to keep this information – and all employee medical information – confidential and separate from personnel files.
Employers should have a system for updating the list of vaccinated employees and keeping track of test results. Employers must also be prepared to accept and evaluate requests for religious and disability accommodations. Does your business have forms for this purpose? Ensure that all key personnel are trained on how to handle requests, in what timeframe, and the best practices for doing so.
6. Draft Or Update Written Policies
Businesses should have a written COVID policy that follows guidance from OSHA and the CDC. The policy should address issues such as whether testing will be offered as offered, how to submit documentation, how to request an accommodation, and consequences for failure to comply. Employers may want to notify employees of the impending ETS now to allow them extra time to get vaccinated.
Businesses will be well-positioned for compliance with the ETS by taking these steps now. Further guidance on the ETS will be posted on www.massemploymentbizlit.com/blog when it is released.
Catherine M. DiVita is an employment law attorney at the Boston law firm of Conn Kavanaugh Rosenthal Peisch & Ford LLP.
This column is intended as a general discussion of the topics covered and does not constitute the rendering of legal advice or other professional advice by Conn Kavanaugh Rosenthal Peisch & Ford LLP or its attorneys.
