In response to the COVID-19 pandemic, President Joe Biden issued an Executive Order for OSHA to consider an Emergency Temporary Standard (ETS), which would include rules on wearing masks in the workplace and other regulations that aim to protect employees, as well as providing consistency of protection across all 50 states, according to the National Safety Council.
“OSHA’s anticipated Emergency Temporary Standard is likely to be very similar to the comprehensive COVID-19 standards that Virginia and California established in late 2020, but would apply to nearly all workers and worksites across the country,” explained Gary Pearce (pictured above), chief risk architect at Aclaimant. “It’s expected that this temporary OSHA standard will eventually be replaced by a new and permanent infectious disease standard, even if the frequency of COVID-19-related workplace infections has fallen sharply in the meantime.”
While the ETS has some clear benefits for worker safety, it also brings new risks to the forefront for businesses. For one, the ETS is likely to expand the totality of employers’ legal obligation and does not obviate the need to keep up with future changes, noted Pearce, adding: “Despite the existence of a unifying national standard, organizations shouldn’t discount the likelihood of having ongoing additional regulations at the state, county, or even municipal level.”
Already, many businesses have adopted some COVID-19-specific standards in their workplaces. It would have been hard not to, if companies wanted their employees to feel safe at work. A few of the more common changes have included employers requiring employees to self-report symptoms, keeping symptomatic employees out of work and managing their return, providing personal protective equipment (PPE), and requiring social distancing, among others.
Then, on January 29, OSHA released guidance that foreshadowed what would be coming down the pike in regards to the ETS, which means all businesses should now be preparing for new workplace standards.
“What I’m hearing and what I’m telling insureds is that this is going to be not just for COVID-19, but it will become a new standard for all infectious diseases going forward,” said Jeff Corder, vice president of loss control at AmTrust. “I’m telling insureds of all sizes that they need to implement this, even if you’re a two- or three-person corporation or company.”
The main highlights from the January guidance include references to businesses’ need to provide the vaccine to their employees, according to Kelley Barnett, vice president and corporate counsel - labor & employment at AmTrust Financial Services.
“It [also] references face coverings, and more importantly, the CDC’s recent guidance that people should be wearing double-layer face coverings,” she listed. “Another highlight that I think is particularly important … is that businesses need to establish a system to communicate their COVID-19 prevention policies, and they need to train their employees and their supervisors on that policy. They also need to establish an anonymous reporting system for employees who have concerns about how a business or its managers are implementing those policies.”
This last component is particularly key from a legal standpoint because OSHA is persistent on its anti-retaliation guidelines and wants to make sure that workers have a way to report concerns in a way that’s safe and non-punitive.
However, the first component that Barnett mentioned about the vaccines is likewise important, considering the many questions for businesses that this brings forward, such as whether vaccines should be mandated for workforces or just encouraged.
“Most companies are not mandating it because it creates a couple of different legal landmines … but even for those that are encouraging their workforces to get the vaccine, there are still some legal issues and compliance issues to think about,” said Barnett. “The first is incentives – a lot of companies want to get their employees to take the vaccine, so the first thing that comes to mind is offering an incentive to get them to do that, whether it’s a couple hours, or a day of PTO. Some companies are offering cash or some other type of incentive … But you have to be careful that the incentives are not so large that they become coercive.”
In other words, companies need to ensure that the incentive doesn’t turn a voluntary vaccination program into an involuntary vaccination program, where an employee feels like they have to sign up and get the vaccine.
The second issue that Barnett highlighted is vaccination status, which falls under an employee’s medical information. “Whether you do or do not get the vaccine must be treated like confidential medical information and it can’t be shared, so where I’ve seen this come up already with businesses is that an employee says, ‘I’ll go back to work, but I want to make sure that everyone in my department or on my floor and in my work area also gets the vaccine,’” she explained, adding that this is not information companies can share with those concerned employees.
The third landmine that comes up around vaccines is that businesses need to treat vaccinated and unvaccinated employees equally, because vaccines are not 100% effective and those who receive them can still carry and spread the virus. That means all employees still have to follow the same policies, like wearing masks and social distancing.
Finally, there may be classes of employees who can’t take the vaccine because of a qualified disability under the Americans with Disability Act, or who can’t take the vaccine due to a sincerely held religious belief. Businesses can’t force those particular employees to take the vaccine, and may want to consider offering them the same incentives.
“In my view, employees who can’t take the vaccine due to a qualified disability, or because they have a sincerely held religious belief that prevents them from getting the vaccine, still need to be offered the ability to earn that incentive,” said Barnett. “Because if they don’t, I think that they’re going to run a real risk of having an unintentional discriminatory impact on those classes.”