Inside ETS: What you need to know about the new Covid-vaccine workplace requirements

On Thursday OSHA finalized its Emergency Temporary Standard (ETS), which requires private-sector companies with 100 or more workers to ensure their employees either get fully vaxxed or take weekly Covid tests and mask up in the workplace. The full ETS, published Friday on the Federal Register, stretches 490 pages. (For everyone who breezed through high school lit with SparkNotes, don’t panic: There’s a summary.)

That was fast. As expected, the ETS faces legal challenges.  NPR reports that “27 states filed lawsuits challenging the rule in several circuits,” and on Saturday the Fifth Circuit Court of Appeals issued a temporary stay of the ETS, requiring the Biden administration to respond to plaintiffs by Monday, November 8. The plaintiffs in this case, which include Texas, Louisiana, Mississippi, South Carolina and Utah, argue that the ETS exceeds OSHA’s authority.

“Nowhere in OSHA’s enabling legislation does Congress confer upon it the power to end pandemics,” the plaintiffs argued.

Former head of OSHA under President Obama, David Michaels, tweeted that the plaintiffs are “lying” about the contents of the ETS in their complaint.

“The OSHA rule requires employers to prevent workplace virus transmission by limiting the presence of potentially infectious workers in the workplace by requiring vaccination, a negative test, or have the worker work from home. No one is forced to be vaccinated,” Michaels wrote.

Mark your calendar. Pending legislation isn’t a reason to delay in setting up compliance programs. Most folks in HR probably don’t have time to leisurely peruse the full ETS over a PSL: They need to hop to it in order to be in compliance.  Companies have until December 5 to establish a vaccination policy, “determine vaccination status of each employee,” implement a mask mandate for unvaccinated employees, and start reporting work-related Covid-19 hospitalizations and fatalities to OSHA, among other things. January 4 is the deadline to make sure all employees are fully vaccinated and to start a weekly (at least) testing program for unvaccinated workers.

HR Brew caught up with experts for their initial reactions to the ETS. We learned:

• PTO yeah. It’s not exactly sipping a piña colada on the beach of a Sandals resort, but workers will receive PTO, up to four hours, for the time they take to get vaccinated, and paid sick leave for any “reasonable” time taken off for side effects.
• Pass the bill. Though there was speculation that employers would have to pay for testing unvaccinated employees, the ETS may require unvaccinated employees to pay for tests if they can’t access a free testing site, unless a collective bargaining agreement stipulates otherwise.

But that doesn’t mean the ETS comes at no cost to employers, says attorney Devjani H. Mishra, who leads a Covid-19 task force and return-to-work team at labor and employment law firm Littler. “People are looking at expenses, and it’s not just the cost of the test,” Mishra said. “It could also be the cost of the time, if you have hourly paid employees, and they have to go somewhere to take the test and wait for it and then come back with it, whatever. Those costs can really add up.”

• Mask tensions. The ETS requires unvaccinated workers to get regular tests and wear masks when working indoors around coworkers. Kara Govro, chief HR legal expert at Mineral, an HR compliance service for 500,000 companies, predicts this may cause divisions in the workplace.

“Wearing a mask could cause some whispering,” Govro told HR Brew. “It lets everyone know who is and isn’t vaccinated, and, of course, there are going to be some questions about why people chose not to be vaccinated. Some people might not be comfortable working with an unvaccinated coworker.”

Bottom line: There’s a lot in the ETS that seems designed to incentivize employees to choose vaccination over testing. Vaccination may seem more straightforward and easier administratively for the employer.

That said, there could be a recruiting and retention advantage for employers who offer a pleasant testing option.

Gartner’s group VP and chief of HR research, Brian Kropp, explained: “If I forced my employees to [get tested] on their own, then that’s a pretty big stick, right? Because I’m saying, ‘Now you have to spend your Sundays getting a Covid test rather than watching football or hanging out with your family or doing whatever, and pay for it in order to keep working.’”

Kropp suspects this could lead to resignations, but suggested companies could find a way to turn testing into a perk.

“Alternatively,” Kropp suggested, “If you say, ‘Well, I’m going to pay for your testing and when you show up on Monday morning at nine, yes, you have to take a Covid test. But between the time you take the test, and the time we get the result back—the hour that it takes or whatever—you can hang out in this room, you don’t have to work, you just have to wait.’ For companies that choose that...it gives them a potential competitive advantage in attracting talent.”—SV

Do you work in HR or have information about your HR department we should know? Contact Susanna Vogel via the encrypted messaging apps Signal and Telegram (@SusannaVogel) or simply email [email protected].