With the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) back in effect, at least for the moment, it is time for covered employers to consider making a written COVID-19 vaccination or testing policy. Under the ETS requirements covered, employers must create a policy by January 10th, 2022, either requiring employees to be vaccinated or to wear a face covering and submit weekly COVID-19 tests showing a negative result.

Though the Supreme Court has been asked to make a final judgment on whether the ETS will remain, employers will need to begin work on their written plan now in order to be certain it is ready by the deadline. Here are a few considerations employers should keep in mind as they prepare their written plan.

OSHA’s Policies

In many cases, employers may already have plans in place for COVID-19 requiring either vaccination or testing. OSHA has accounted for this and has indicated that it does not intend for employers to start from scratch implementing a new plan. Instead, employers may be able to use the same policy and simply add in any of OSHA’s required rules to their existing policy:

According to one of OSHA’s FAQs, a policy should include information on:

• Any vaccination requirements
• Exclusions from the written policy include reasonable accommodations for those with a disability or sincerely held religious beliefs that would prevent vaccination as well as medical reasons to delay vaccination
• How the proof of vaccination is to be collected
• Any paid leave that is available to receive the vaccination
• Policies for notification if an employee tests positive for COVID-19 as well as how they will be excluded from the workplace
• How employees can gain more information on company policies, the ETS, and the effectiveness and safety of the COVID-19 vaccines
• Disciplinary policies for violation of these rules
• Details on effective dates and guidelines as well as who the policy covers and how these rules will be enforced

OSHA has provided templates for a vaccination or testing policy on its website that employers can use for more assistance on what an effective policy looks like.

Will You Allow An Alternative to Vaccination?

One important point for employers to consider is whether or not they will mandate vaccination or allow employees to wear a face covering and submit weekly COVID-19 test results. For employers who choose the latter option, they will need to ensure they have procedures in place for employees to submit this type of information.

To start with, employers should begin by gathering information on which of their employees have already been vaccinated. For employers with a high rate of unvaccinated employees, a testing program may be complicated and bear a high cost to implement. This could be a big factor in deciding whether or not to mandate vaccination.

It is important to ensure that any information that employees do provide is stored in a secure manner and that employees know how to submit this information. For employees that are not fully vaccinated, it is important to remember that the ETS requires that employees wear face coverings when they are indoors and in the presence of another individual, with few exceptions. Failure to enforce these rules may result in significant penalties.

Establish a System for Handling Reasonable Accommodation Requests

In some cases, an unvaccinated individual may be entitled to reasonable accommodation, and it is important to establish how this process will be handled. Typically, these employees will still be subject to weekly testing requirements. However, if these conflict with a sincerely held religious belief, then they may be entitled to reasonable accommodation from these as well. It is important that the process for requesting a reasonable accommodation is clear and that all anti-discrimination guidelines from the EEOC and state agencies are followed when deciding whether or not to grant a reasonable accommodation. 

Employer Takeaways

It is important to get started now on preparing your organization’s written COVID-19 vaccination or testing policy in order to be prepared by the January 10th deadline. Make sure that you consider these points when designing your program and remember to keep it simple. Meet all the required points but don’t design a policy more complex than your organization is ready to handle.

Make sure your company policies are compliant with State law by reading up on fair chance hiring practices. Learn more by downloading our free resource on Adverse Action Notice Protocols in Compliance With FCRA.