On November 5, 2021, OSHA (The U.S. Occupational Safety & Health Administration) published a new Covid-19 Vaccination and Testing Emergency Temporary Standard that has employers and workplaces scrambling. These new policies promise to bring a storm of employee sentiment, politics, and healthcare into organizations. So, how can companies navigate these new rules, understand the changing legal landscape, and keep employees from jumping ship?
What is an ETS? What is ETS 1?
On June 10, 2021, OSHA announced an Emergency Temporary Standard. To avoid confusion, this standard will be referred to in this article as “ETS 1”.
According to OSHA, this first ETS was primarily focused on protecting frontline healthcare workers from Covid-19. It also focused on essential industries that require people to work close to one another: food processing, big-box retail, manufacturing, grocery stores, etc. Under these protocols, vaccinated individuals were exempt from the use of social distancing guidelines, masks, and physical barriers.
Is ETS 1 still in effect?
In November 2021, after consulting with the Centers for Disease Control and Prevention and the National Institute for Occupational Safety and Health, OSHA decided to maintain its June 10th ETS 1 requirements. OSHA will reexamine these ETS rules on a monthly basis.
What is ETS 2?
- Private Businesses (in all states)
- State and Local Governments (only in states that have OSHA-approved State Plans)
If these organizations employ 100 or more people (and don’t qualify for certain exceptions), they must follow a new set of rules, including:
- Enforcing a mandatory Covid-19 vaccination policy
- Maintaining a record of each worker’s vaccination status
- Making time, including paid time, for employees to get vaccinated
- Providing reasonable paid sick leave for people with vaccine side-effects
- Testing unvaccinated employees weekly
- Requiring masks for unvaccinated people working indoors
For a more complete list of requirements, refer to OSHA’s Covid-19 Vaccination and Testing ETS Fact Sheet and this list of ETS FAQs. The Federal Register, for example, describes an exception to ETS 2 in which companies can enforce regular testing and masking as an alternative to vaccination.
Though OSHA is calling for immediate action, employers don’t technically have to comply with these new provisions until December 5th. And, with expedited litigation, courts are attempting to strike down these rules before they ever come into effect. However, experts warn business leaders to be ready – in case they really do become mandatory.
Legal Challenges to ETS 2
Experts expect a legal showdown between many states and the Department of Labor that will muddy the waters of ETS 2 – and perhaps sink these standards altogether.
On November 6, following the official publication of ETS 2, the U.S. Fifth Circuit Court of Appeals issued an order temporarily blocking these provisions. Citing “grave statutory and constitutional issues”, the court prevented ETS 2 from becoming mandatory – until “further action by this court”.
Many court-watchers (and employers) believe the conservative Fifth Circuit court will squash ETS 2 completely, making any preparations for compliance unnecessary. However, additional challenges to this rule (in other appeals courts) could well mean this case will be heard by a different court.
The National Law Review, for example, lists five different appeals courts to which 26 states have filed petitions to stay ETS 2. This means the venue will be selected by lottery on or around November 16th.
If the venue changes, the Biden administration will likely call for an end to the Fifth Circuit’s stay on these ETS 2 provisions. If not, they may well call upon the Supreme Court for assistance.
Business advisors are telling companies to be ready for ETS 2 - just in case it survives. This means your company – and many others – should probably construct a contingency plan for compliance. At the very least, businesses should consider how they would implement and record data for a mask and testing regime for their non-vaccinated employees.
Should Compliant Companies Be Concerned?
If your organization already requires vaccinations with a more stringent set of rules than ETS 2, you shouldn’t have to worry about how ETS 2 shakes out in the courts. However, you’ll still want a plan for reporting your activities to OSHA under these provisions. And, if someone at your company catches Covid-19 (or passes away from it), your company would need to follow strict reporting guidelines.
In short, if you’re already enforcing Covid-19 regulations similar to ETS 2, you won’t need to put new procedures in place. But you’ll need to record and report your ongoing efforts against this disease – to stay on the safe side of the law. If, of course, ETS 2 actually gains the force of law.
Workplace Morale and ETS 2
Covid-19 has put unprecedented pressure on people and organizations for well over a year. Now, workplace politics and national politics are colliding – in a perfect storm of stressors. From logistical concerns to family needs to the consistency of Covid-19 enforcement, the needs and preferences of your employees are urgently changing and varied.
Employers need to make sure their employees feel safe and secure – not just against the virus – but in expressing their thoughts and preferences about what can very well be a make-it-or-break-it issue during this sensitive time.
Take Your Company’s Pulse– Privately and Fairly
Now, more than ever, with the effects from Covid-19 and the “great resignation”, your company needs to prioritize hearing and communicating with employees. Workers feel heard when you ask for their input on urgent issues like Covid protocols – issues that can mean the difference between retention and another expensive round of hiring.
With employee feedback platforms like AllVoices, navigating employee relations can be made easier. With simple, powerful reports and dashboards, you can identify growing concerns before they become problematic. You can take action to correct your course, if necessary, and track your progress toward calmer seas.
AllVoices is an industry-leading employee feedback management platform. We’ve stood beside our corporate partners through the Covid-19 pandemic, the #MeToo movement, the #BlackLivesMatter movement, and beyond. We’re here to help you and your people to safer, happier workplaces – no matter what storms appear on the horizon.
We’ll show you how AllVoices works, answer your questions, and help you navigate a route through this tumultuous time.