Updated Post 12/17/2021
On Friday 12/17/2021, The Sixth District Federal Court of Appeals rejected the Fifth District Federal Court of Appeals’ “pause” on OSHA’s Emergency Temporary Standard (ETS) paving the way for OSHA to require all employees of companies of 100 or more employees to either be vaccinated or to submit to weekly Covid Testing. The US Supreme Court previously selected the sixth district to hear one consolidated appeal that will have jurisdiction over the entire country.
In its briefs, OSHA has argued that their responsibility is to ensure that employers provide a safe place for workers, and that employers should be taking steps to provide a Covid-free workplace. The Sixth District agreed.
Later in the day on Friday, business groups have filed an appeal to the Supreme Court..
OSHA has stated that they will not begin to enforce this Standard until January 10, 2022
Updated Post 11/26/2021
On November 23, 2021 (at 2:28am!) OSHA filed an Emergency Motion to allow them to enforce the Emergency Temporary Standard (ETS) while the Fifth Circuit’s stay was being decided.
Updated Post 11/23/2021
OSHA had implemented their “Emergency Temporary Standard” or ETS on November 5, 2021 for implementation on December 5, 2021. Had this standard gone into effect it would have required all employers of over 100 employees to require employees to be Covid vaccinated or comply with regular Covid testing. The Fifth Circuit Court of Appeals issued a temporary stay, prohibiting OSHA from enforcing this standard.
Because this issue is affecting employers and employees throughout the country, it was decided that one court would be appointed to decide the issue for all Districts. The Sixth Circuit Court was selected to make a decision for all districts.
What does that mean to us? Temporarily, the standard is on hold. The case will be reviewed in the near future, but because it is a different Circuit Court hearing the case, we cannot predict how the Sixth Court will rule. Stay Tuned for further details
Updated Post 5/25/2021
OSHA has changed their position on requiring adverse reactions to vaccines be be be reported as a “reportable event”. Based on popular outcry and the desire NOT to be viewed as a deterrent to vaccinations, OSHA has changed their position. Quoting from their FAQs:
DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.www.osha.gov/coronavirus/faqs#vaccine
Original Post 5/11/2021
Are you thinking of requiring your employees to have vaccinations before returning to work? A number of my clients have asked about best practices and what is legal or illegal. Below I have posted answers to some of the more common questions that I get asked. If you have additional questions that you would like to see answered, please email me at Steve@PembletonHRConsulting.com and I will respond and post the question and answer here.
Here some FAQs on this topic:
Can I require employees to have completed the vaccination process before they return?
- Answer: Short answer is Yes, but there are some caveats. If an individual is claiming a medical or religious exemption, you must enter the “interactive process” with them. This means that you need to discuss with them if there is a “reasonable accommodation” that you can make to allow them to return without getting the vaccine.
What is a “Reasonable Accommodation”
- Answer: A reasonable accommodation is simply something that the employer can do to allow the worker to return to work without receiving a vaccine. The focus is on the word “reasonable”. If you typically only work on the day shift, it is unreasonable to ask the company to open up the building in the evening so the employee can work there by themselves. But it may be reasonable to require the employee to wear a mask or allow the employee to continue to work from home if they have been doing so for the past 12 months. There is no clear guideline on what is reasonable.
What is the OSHA point of view on this?
- Answer: OSHA has taken the position that it is the employer’s responsibility to provide a safe work environment for employees. Their National Emphasis Program (NEP) includes inspecting facilities to ensure they are safe against Covid, and they support requiring vaccinations, but they don’t absolutely require it. If an employer requires it, and an employee develops an adverse reaction to the vaccine, it is considered an OSHA reportable event.
Can I offer incentives to get vaccinated?
- Answer: Absolutely you can. If the incentives are very large, such as a sizeable bonus, OSHA may treat this as if you are requiring the vaccination and therefore consider adverse actions as a reportable event. If the incentive is small, that is not the case.
Can I ask to see the employee’s vaccination card?
- Answer: Yes you can, but be careful. If they do not have a card you can ask them if they have been vaccinated. If they are not planning to get a vaccine, you can ask them if it is for a medical or religious reason, but you CANNOT ask what the medical condition is. Just accept it. Pressing for an employee to identify the condition could be a violation of the Americans with Disabilities Act (ADA).
What if the employee claims that they lost their vaccination card?
- Answer: If the employee claims that they lost their vaccination card, they can obtain a certification from their County Health Department, their personal physician or the location where they received the vaccination.
What if the employee claims a medical or religious exemption, but we cannot determine a “reasonable accommodation?
- Answer: In this case, you are allowed to terminate them, but be certain that there is no reasonable accommodation. Feel free to call me if you just want to talk it over.
Do I have to offer paid sick time for Covid related illnesses?
- Answer: You have to treat Covid the same as any other illness, according to your policy or past practice. If you do not normally pay for sick time, or if the employee is out sick for a longer period of time that you typically offer sick time, you can pay them and receive a tax credit for the additional cost. See your tax professional for additional details about this. If you offer this additional benefit for one employee, you have to offer it for everyone.