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Supreme Court Strikes Down OSHA’s Vaccine ETS: An Employer’s 6-Step Priority List | Fisher Phillips

The Supreme Court just blocked the implementation of OSHA’s vaccine for ETS for the foreseeable future, which means your compliance to-do list is getting much shorter — but it’s by no means gone. While SCOTUS’ decision today 6 to 3 means you no longer have to follow the January 10 deadline, this insight will provide you with a practical, six-step priority list to guide you on your way over the coming days.

What happened?

Technically, the court did not permanently kill ETS, but the long-term prognosis does not look good. SCOTUS has reinstated the temporary injunction that again prevents OSHA from imposing ETS for the time being while the parties continue to fight in lower courts over whether the emergency rule is in place. There are two ways a rule can come back to life in its original or revised form:

  • There is an unlikely possibility that the Sixth Circuit Court of Appeals — which will take the case from here — could decide the rule is valid and breathe new life into it sometime in the coming weeks and months. However, even if it did, ETS would face a steep hill to survive a challenge on the merits if the case was brought before Scotus again.
  • OSHA’s ETS is only designed to remain in place for six months, after which it must be replaced with a permanent standard. If a workplace safety agency wants to continue this fight, stay updated on the official rule-making process which could see the publication of an official regulation on or before May 5.
  1. Top priority: Complete your administrative obligations

    If ETS returns online in the coming weeks and months as described above, or if OSHA issues a permanent regulation along these lines, you can be sure that the agency will take a tough law enforcement approach. The Occupational Safety and Health Administration (OSHA) will likely indicate that it expects employers to develop their own compliance approach during this forget-me-not and to be ready to begin their efforts immediately. For this reason, a more conservative approach is to continue your work on the following key management obligations:

  2. Decide if you want to enforce your own authorization

    The next step is to decide if you want to require vaccinations in your workplace. You can still force your own vaccine authorization in most locations, regardless of a SCOTUS decision. Check this list of states and coordinate with your workplace legal advisor to determine if you can proceed with the authorization at your workplace.

    But while the law may be entirely on your side, it’s important to consider issues around vaccine mandates before acting. Accordingly, while most employers can require employees to receive a vaccination in order to remain in the workplace, you should not adopt such a policy before considering six important issues:

    • Identify known concerns among your workforce and provide information to help employees understand how immunizations can reliably enhance the health and safety of themselves, co-workers, and others.
    • Keeping in mind the unique environment in your business, figure out the best way to communicate your policy to employees, including how much notice to give before the requirements are implemented.
    • Consider related logistics, including compensation issues that may be involved.
    • Develop a strong and clear residency policy to address religious and disability issues, taking particular care to communicate and manage the residency process in a thoughtful manner, with an emphasis on individual and confidential consideration of each request.
    • Spend some time thinking about how your employees, customers, and other components will respond to the policy, including how to handle responses like the ones above.
    • Develop a dedicated team to coordinate this entire process.
  3. Consider creating safety commitments for unvaccinated employees

    You can also require those who have not demonstrated their vaccination status to comply with additional safety restrictions as necessary to maintain a safe work environment. This can include concealment requirements, social distancing rules, work-related travel restrictions, and other concepts relevant to your work environment. Whatever you decide on, you’ll want to announce these requirements early on, so it doesn’t sound like you’re targeting specific workers individually. You will need to craft your policies carefully, with respect to your specific workplace, and in coordination with your workplace legal advisor so as not to create a perception that your rules are punitive or coercive.

  4. Decide whether to impose testing requirements for non-vaccinators

    You can order regular COVID-19 testing for all unvaccinated individuals to ensure the highest level of safety in the workplace. To do this, you must keep in mind four main points:

    • Communicate the new policy with your workforce in a clear and direct manner. You may want to use a combination of methods: electronic through the company’s digital services, an all-employee meeting where you can see the new rationale and protocols, and through written materials that are distributed to all workers. Whatever forms of communication you choose, emphasize that the sole purpose of this policy is to maintain a safe workplace.
    • Determine how often you will test those employees who have not or cannot demonstrate their vaccination, given the unique safety concerns that arise in your workplace. You will need to run enough frequent testing so that the system can reasonably detect potential outbreaks of COVID-19, but not so frequently that it appears that your testing requirements are simply of a punitive nature.
    • Ensure that your protocols for required testing comply with applicable wage and hour laws. The time taken to receive required tests from the employer should always be treated as compensable.
    • Finally, you may want to consider the ability of your workers and your organization to obtain COVID-19 tests in your community before setting your policy or setting its standards. Tests are expected to become widely available in the coming weeks and months, so you may want to take a wait-and-see approach in this regard.
  5. Consider charging an additional fee for health insurance for unvaccinated workers

    Similar to the nic surcharge that many employers already apply as part of their wellness programs, you can charge additional health insurance premiums for those who haven’t been vaccinated. Before considering any additional fees for health insurance, you should make sure that you understand state and federal law regarding this option. For a comprehensive analysis of this option, please review our insight: “6 Questions for Employers to Answer Before Charging Unvaccinated Workers Additional.”

  6. Consider vaccine incentives

    The last consideration falls into the “carrot” category, giving up any “stick” – offering incentives to any worker who can demonstrate that they have been fully vaccinated. The most common incentives offered by employers include cash, gifts, or paid time off. With clear guidelines from the EEOC, you have simple guidelines to ensure that you are not breaking any discriminatory laws if you decide to offer incentives:

    • If your employees voluntarily provide documentation confirming that they received the vaccination and obtained the shot themselves from a pharmacy, public health department, or other health care provider in the community, you can offer them any incentive you want without obvious restrictions.
    • If your organization (or an entity acting on your organization’s behalf) administers the vaccine, you can still offer incentives — but they can’t be so valuable that they could be considered coercive.

More details about this option can be found here.

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