The Supreme Court ended a two-month battle on Thursday, January 13 when it stayed OSHA’s Emergency Temporary Standard (ETS). Per the Court, the decision was enacted in part to limit OSHA’s power over the entire workforce.
While OSHA does have the ability to set workplace safety standards, the Court found the ETS to go beyond that scope as it presented a “significant encroachment into the lives — and health — of a vast number of employees.”
There is finally certainty around the proposed ETS that has been presenting challenges to large business owners since November 2021. However, the ruling also leaves businesses wondering how they can still ensure a safe workplace and protect their workers.
While the federal ETS has been lifted, some states, industries, and organizations are likely to enact their own stipulations, which raises an important question — now that the OSHA ETS has been lifted, what does it mean for my business in 2022?
|Companies with Vaccine and/or Testing Mandates
*information gathered from NBC news: https://www.nbcnews.com/business/business-news/here-are-companies-mandating-vaccines-all-or-some-employees-n1275808
|Delta Air Lines|
|MGM Resorts International|
|The New York Times|
|Union Square Hospitality Group|
|The Walt Disney Company|
|The Washington Post|
How Has the ETS Progressed?
Since OSHA first announced the standard towards the end of 2021, there have been rapid developments. Petitions led to the issuance of a stay, which the 6th Circuit lifted before the Supreme Court’s latest issuance of the stay.
Below is the sequence of the developments so far.
November 5, 2021: Initial Proposal
In November 2021, OSHA issued the initial ETS proposal. The standards required private-sector employers with at least 100 employees to mandate that the employees be fully vaccinated or perform weekly testing.
The initial proposal included many requirements from employers, including:
- Requiring employees to provide a report of their vaccination status and maintain the records
- Ensuring their unvaccinated workers get tested weekly and provide a report of their test results
- Requiring unvaccinated employees to wear face masks when indoors or in a vehicle with another colleague
- Removing employees who test positive for COVID-19 from the workplace immediately until they test negative and meet CDC’s return to work criteria
- Reporting work-related COVID-19 hospitalization within 24 hours and fatalities within 8 hours of receiving the information
- Providing paid leave to workers to get vaccinated and recover from any side effects of the vaccination
The stayed ETS was to take effect on December 5, 2021, and the testing would begin on January 4, 2022. In addition, OSHA required the employers to implement the standard for up to 6 months.
November 6, 2021: Initial Suspension by 5th Circuit
On November 6, 2021, the 5th Circuit suspended the ETS after a petition opposing the directive. The petitioners argued that OSHA overstepped its mandate by imposing the requirements on private employers.
November 12, 2021: Second Suspension by the 5th Circuit
On November 12, the 5th Circuit reaffirmed its suspension, criticizing the scope of the ETS. The court ordered OSHA to suspend implementation of the standards. Other similar petitions were filed, and after consolidation, they were moved to the 6th Circuit.
December 17, 2021: 6th Circuit Lifted Stay and Reinstated the ETS
Several weeks later, the 6th Circuit lifted the stay and reinstated the ETS. Following the new development, OSHA published new compliance dates for covered employers to implement the standards, previously set to take effect on January 10, 2022, with testing for unvaccinated employees to begin on February 9, 2022.
January 13, 2022: Supreme Court Rules Against Federal ETS
This week’s ruling from the Court ends the two-month-plus debate over OSHA’s initial proposal. However, it’s not black-and-white for business leaders looking to ensure a safe workplace.
What Does This Mean for Me in 2022?
Despite the federal stay, businesses stand to benefit immensely after implementing the ETS proposals. The pandemic has crippled industries, with some businesses completely wiped out. A solution that seeks to stabilize operations, ensure health and safety, and bring back normalcy should be embraced.
Some of the possible gains of adopting the proposals include:
- Demonstrating to your workforce that you care about their health and safety
- Minimizing the risk of infection in the workplace
- Reducing illness-related business interruptions and downtime (costly shutdowns, loss of key personnel due to outbreaks, etc.)
- Boosting confidence in their workplace safety, thereby encouraging employees to return to the office
Steps You Can Take in 2022
Many businesses will choose to reference OSHA’s ETS when implementing their own standards for vaccine management and COVID testing. However, the federal stay gives organizations much more freedom to customize a solution that works best for their employees.
Organizations now have the ability to implement standards that respect their employees’ freedom while still encouraging safety in the workplace. Some of the measures you can take as a leader in your organization include:
- Encouraging employees to get vaccinated. You may consider offering incentives for employees to get vaccinated and organize on-site vaccination if most of the workers are not vaccinated. In case the majority of the employees are already fully vaccinated, you may arrange for off-site vaccination at a nearby community center.
- Organizing convenient testing for unvaccinated employees. This could be on-site testing, off-site testing at a nearby center, or self-testing.
- Planning for the cost of testing. You may need to consider how the testing costs will impact the employees’ wages or your budget if your local employment laws require you to reimburse such expenses.
- Arranging how the business will handle the time-off during employee vaccination and testing.
- Enforcing a vaccination or testing requirement for hybrid workers.
- Setting up reporting and record-keeping procedures.
- Drafting a policy to address the compliance measures.
- Investing in a solution such as ReturnSafe to enhance your compliance.
How Can ReturnSafe Help?
Despite the positives of implementing the ETS, doing so does place an additional burden on your HR team that is already overwhelmed managing the workforce during these challenging times. However, ReturnSafe simplifies the ETS implementation, making it easier for businesses to comply with the reporting and notification requirements.
ReturnSafe is a HIPAA-compliant solution, and you can deploy it as early as the next day. Once you upload your employee roster on the platform, you can request employees report their vaccination and testing status with the mobile phone or web application.
The information is stored on a secure platform and HR admins can monitor employee responses to validate vaccination status and identify who needs to get tested weekly. What’s more, ReturnSafe provides consolidated data making compliance reporting much easier.
COVID-19 has wreaked indescribable havoc on businesses. While we bounce back to rebuild, having some safeguards against uncertainties is a welcome relief. With the OSHA ETS ruling finally complete, it’s time for you to consider the best ways to protect your workforce. ReturnSafe can help you foster healthier workplaces for all to thrive.