On September 9, 2021, the White House announced a new COVID-19 action plan for employers with 100 or more employees. It’s anticipated that the Occupational Safety and Health Administration (OSHA) will be issuing a new Emergency Temporary Standard (ETS). Here’s what the new mandate will have:
- All employers with 100 or more employees will be required to ensure their workforce is either fully vaccinated, or
- If any employee chooses to remain unvaccinated, employers must ensure they produce negative test results weekly before coming to work.
The New York Times reported that OSHA issues new ETS, over 80 million workers in private sector businesses with 100+ employees will be affected.
It’s now time for employers to proactively prepare to accommodate the new ETS. By preparing in advance, they can ensure clarity for employees and avoid penalties.
In this blog, we will discuss seven steps employers can get ready to embrace new mandates in a seamless manner. Before diving deep, let’s discuss other OSHA guidelines which may be concurrent with the new ETS.
Existing OSHA Guidelines
Occupational Safety and Health Administration is a regulatory agency of the United States Department of Labor with a mission to ensure safe and healthy working conditions for workers by making and enforcing standard regulations.
As per the OSHA act, it is an employer’s responsibility to provide a safe and healthy workplace. At this time of the new normal, returning to the office is highly monitored and regulated by OSHA. Employers are instructed to engage with workers to create plans and policies to protect the high-risk and unvaccinated employees mitigating the risk of COVID-19, including the following rules:
While OSHA is diligently working to ensure easy access to vaccination for all, employers are required to facilitate the process by providing paid time off to employees for vaccination and recovery from side effects.
Provide instructions for the affected
While employers are trying to get their employees vaccinated, they will have to operate in mixed-vaccinated situations. Thus, they must lay down proper line-of-action to prevent or restrict the risk of transmission in case an employee develops symptoms of or tests positive for COVID-19.
Implement COVID protocols
While operating with the mixed vaccinated workforce, employers must enforce strong protocols to protect their employees against the virus, such as proper physical distancing rules, compulsory wearing of face masks, etc. Employers must also provide reasonable accommodations for workers who have difficulty with face coverings.
Maintain a hygienic working environment
Perform routine cleaning and disinfection along with a well-maintained ventilation system to ensure employees work in safe and secure work conditions.
Educate and train employees
Employers must train higher-level employees on implementing COVID-19 policies. These policies should be communicated to staff clearly and frequently to keep them educated on policies, procedures, and updates.
Maintain records and reports
Employers must keep a record of vaccinations, persons affected by COVID, including mortality to support local health departments in contract tracing and record-keeping efforts.
Encourage employee feedback
Employers should also ensure that employees can voice their concerns, provide feedback or suggestions. They should be aware of whom they can contact in case of concerns and queries.
Operating with mixed-vaccination status
According to OSHA new mandates, employers will have to take additional steps to mitigate the spread of COVID-19 among the high-risk and unvaccinated employees due to the following contact situation:
In a workplace where a mix of high-risk and unvaccinated employees come into close contact while working, employers must incorporate additional rules other than general mandates.
Long duration of contact
Employers must promptly take additional steps where high-risk and unvaccinated employees work with co-workers in close proximity for prolonged hours.
If high-risk and unvaccinated employees are exposed to the COVID-19 virus through respiratory particles in the air due to poor ventilation, employers must ensure they have adequate ventilation in a confined place and a plan to mitigate the risk of exposure and transmission.
Apart from the above, some other factors that may also increase the risk among high-risk and unvaccinated employees include:
- Employer-provided shared transportation
- Frequent contact with individuals other than co-workers
- Communal housing provided by employers
For high-risk workplaces, OSHA has provided some guidelines in its appendix, in addition to the general precautions, to help mitigate the risk.
Steps to prepare for Emergency Temporary Standard
Although President Joe Biden has directed OSHA to issue and enforce ETS around the new mandate, there has been no release yet, confusing employers. In addition to this, there may be changes or delays to the same that will come into effect and could take some time. Below are some steps that will help you prepare to comply with the new mandates, which may be implemented with immediate effect upon release. These steps are in alignment with statements made by OSHA officials.
Step 1: Determine the threshold
As stated by OSHA officials, the 100+ employee threshold will be a company-wide headcount rather than a particular site. A good rule of thumb for employers will be to calculate every employee currently under their employment – full-time, part-time, and temporary. If your employee count is 100 or more using the above calculation method, the new ETS will apply to you. Possibly, specific details about certain topics such as headcount fluctuation throughout the year and joint employment will be addressed in the release.
Step 2: Vaccination status and weekly test
With this new ETS, having visibility over workforce vaccination status will help employers have the best compliance approach. Below are two case scenarios:
- Firstly, if an employer has a few unvaccinated workers, weekly testing will be a logical choice.
- Second, an employer may have a larger number of unvaccinated employees. Thus, documenting documentation can be a challenging task, and they may promote vaccination.
Also, keeping a close track of employee vaccination status will help employers meet mixed vaccination environment regulations and update their future. Another closely tracked aspect will be testing the details of an employee. Weekly tests may be recorded for audit trials or compliance.
Automation allows employers to track vaccination status and maintain test records efficiently. Employers must also survey employee sentiment regarding both vaccination and weekly testing before making policies. This will also help employers to create an estimated action plan and budget.
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Step 3: Paid time off
OSHA mandates employers to offer paid time off to employees for vaccination and to recover from any side effects. But it is not very clear whether any existing paid time offs should be used or an additional paid leave should be provided.
Similarly, employers who offer COVID testing for unvaccinated employees must consider it as working hours depending on circumstances. Again, there is a lack of clarity on the testing hours. . We hope the new ETS will provide proper guidance regarding both paid time off and testing hours.
Employers who have remote workers may be able to use it as an option for unvaccinated workers. If the new ETS allows and provides regulations around it, employers may choose to consider a full-time remote-work option.
Step 4: Determine compliance and build policies
After collecting all the information through the above steps, you can examine and determine their policies. Some options can be:
- Compulsory vaccination for all employees without a testing option
- Option for unvaccinated workers to choose weekly testing in place of vaccination
- Paid COVID testing drives
- Increase paid time offs
Employers decide upon options and consequences, which should be then written in detail.
Step 5: Proper employee communication
Employers should not only prepare and build policies before the release of new ETS but also develop employee communications as well. With proper communication, employers can help employees set the right expectations. Policies, timelines, options, choices, compliances, and penalties should be communicated. By communicating ahead, you could provide your employees enough time for upcoming actions such as deciding where they can take vaccinations.
The federal government has announced new mandates for private employers with 100 or more employees. Once OSHA releases a new emergency temporary standard, employers should adhere to the new regulatory compliance of either having a fully vaccinated workforce or ensuring documentation of weekly test reports from unvaccinated employees. A solution that helps in automating the tracking of vaccination status, maintaining weekly test reports, updating policies, and implementing the same are worth investing in and the need of the hour. It will not only ensure a faster return to work but also keeps you aligned with new ETS and other future updates.
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