I’ve heard enforcement of the large employer ETS has been “stayed.” Does that mean we can safely wait to see what happens in the courts?
No. Lawsuits challenging the ETS have been filed in federal appeals courts across the country. The United States 5th Circuit Court of Appeals (Texas, Mississippi, Louisiana) was the first to issue a “stay” order. The stay order is not a final ruling on the ETS; rather, it only temporarily halts enforcement while the merits of the legal challenge are heard. This and other legal challenges will likely be decided in short order and we expect a final ruling may ultimately come from the Supreme Court. Employers should note that the 5th Circuit’s stay order does not impact separate protection guidelines from the Safer Federal Workforce Task Force for federal contractors or under the Healthcare ETS.
At this point, it’s anyone’s guess on where the courts will land. However, employers should not take a wait-and-see approach. Because implementing the ETS’s vaccine mandate cannot be done in short order, employers should begin initial steps towards implementing the required policies and procedures. These steps include determining whether your workforce is
subject to the ETS, inquiring about and documenting employee vaccination status, deciding on which safety policy to implement, and preparing to give employees the required notices.
I employ workers across multiple states with fewer than 100 employees in any one state. Does the large employer ETS apply to my workforce?
Possibly. For purposes of determining whether the ETS applies to any portion of your workforce, count all employees across all states, workplaces (including remote and outside), and working hours (i.e., include part-time employees and temporary workers). Independent contractors should not be counted. Once an employer hits the 100-employee threshold, the ETS continues to apply regardless of later fluctuations in workforce numbers.
However, not all employees who are counted towards the 100-employee threshold are required to comply with employer’s vaccination policy. For example, exclusively remote employees or those who work exclusively outdoors and do not report to a workplace where coworkers or customers are present are not required to be subject to the vaccination policy. But when an unvaccinated employee needs to enter the workplace on occasion, they must be tested within seven days prior.
I operate a business that is organized as parent/subsidiary, bother/sister-controlled group, affiliated service group, or franchise/franchisee. How do I count employees to determine whether my business meets the 100-employee threshold to fall within the ETS’s scope?
Generally, employees should be counted at the employer level (firm- or corporate-wide), not by individual location. However, the ETS states that “two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.” Employers will need to review their business structure to determine applicability and consult with legal counsel for any questions.
The determination of whether your business meets the 100-employee threshold should be initially made as of November 5, 2021. If your business has 100 or more employees on or after this date, the ETS applies for the 6-month duration that the ETS is in effect.
For franchises in which each location is independently owned and operated, the franchisor and each franchisee would be considered separate entities for ETS counting purposes. The franchisor would only count “corporate” employees and each franchisee would only count individual franchisee employees.
My business is located in a state with an OSHA-approved State Plan. If this state submits a COVID-19 OSHA-approved State Plan, what steps should I be taking to comply?
OSHA-approved State Plans are required to enforce occupational safety and health standards that are at least as effective as federal OSHA requirements. States with OSHA-approved State Plans have 30 days (i.e., until December 5, 2021) to either adopt the ETS or implement their own standards, and 15 days to notify federal OSHA of the action they will take. For now, the best course is to proceed as if the OSHA-approved State Plan adopts the same standards as the ETS and continue to look for updates from state regulatory agencies. For employers with workplaces across multiple states, they must follow either the federal OSHA ETS or the State Plan that applies to that location.
What PTO policies should my business adopt related to the large employer OSHA ETS?
Under the large employer OSHA ETS, employers must provide up four hours of paid leave per vaccine dose at an employee’s regular rate of pay to receive the vaccination during normal work hours. This is a new paid leave requirement separate from any other employer-provided paid leave. Employers must also provide a minimum two days’ paid leave per dose to recover from any vaccination side effects. Employees may use existing employer-provided PTO (when vacation and paid sick leave are combined into one policy) or paid sick leave accruals to receive paid leave for vaccination recovery. Note that employees cannot be forced to use vacation time where an employer has separate paid sick leave and vacation policies. If the employee does not have available sick leave, leave must be provided for this purpose.
Employers should update their leave policies to incorporate these vaccination-related leave requirements. Where a state or local leave mandate requires a longer period of paid leave, employers must provide the most generous benefit to ensure compliance with all requirements.
These new leave requirements are specific to short-term absences. Longer-term absences associated with vaccine recovery or resultant health issues may be subject to further protection under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and/or state/local equivalents. As is true whenever adopting or updating a leave policy, be sure to review all group benefits plans (e.g., health, disability, life) to ensure consistency with benefit eligibility provisions. Meaning, employers should review benefit plans to verify that employees are allowed to remain insured during certain leaves.
For a full summary of the large employer OSHA ETS, see our posted article here.