Employers Offered Advice on Ways to Prep for Upcoming OSHA ETS

Sarasota, FL (WorkersCompensation.com) – Businesses should begin to focus on having policies to address how they are handling the coronavirus. A legal and HR expert says organizations need to understand the risk levels of their workforces, and they need to determine how they will plan and prepare for exemptions to the upcoming OSHA mandate.

President Biden’s recent announcement that he’s tasked OSHA to develop an Emergency Temporary Standard (ETS) for non-healthcare organizations with more than 100 employees has many companies scrambling to figure out how to proceed. Several experts recently discussed what the ETS may include and ways companies can avoid non-compliance with the OSHA mandate and its incurred penalties of $14,000 per occurrence.

“If you’re a business honestly taking steps to follow it and can show that, perhaps it’s less likely you’ll get dinged as hard,” said Chuck Kable, chief Legal and HR Officer for Axiom Medical. “On other hand, if there’s an outbreak and OSHA investigates, or does a random check, and you not only didn’t take steps and haven’t done anything to protect your workforce, that may be a little bit different. [OSHA] may find less tolerance for those kinds of violations.”

Expectations for New OSHA ETS

While it’s not clear when or what the ETS will look like, there is some history that may help.

“The first place I’d look is the ETS for healthcare, which is currently out already. The second place I’d look is a current piece of guidance that OSHA put out and that’s called Protecting Workers, Guidance on Mitigating and Preventing the Spread of Covid-19 in the workplace,” Kable said. “There are a couple of core fundamental things I think will be incorporated as part of this new standard.”

For example, the ETS for healthcare requires employers to develop and implement a policy to protect workers from the virus. Called the COVID-19 plan, it mandates that healthcare employers with more than 10 workers have a written plan.

“It’s almost certain there will a COVID-19 plan requirement for non-healthcare businesses too,” Kable said. “What’s that mean? It may mean taking what you’ve already done and putting it on paper if you haven’t already.”

Such a policy should include the steps taken by the business to identify risk and mitigate against that. Part of that involves risk leveling, where employees are determined to be at ‘very high,’ ‘high,’ ‘medium,’ or ‘low’ risk of exposure to the virus.

“You evaluate roles,” Kable said. “For example, a remote role should be considered low risk and what we’re thinking is that will translate into whether and to what extent you have to consider either a vaccination protocol or a weekly testing protocol for that role.”

But companies also need to address instances where employees are mostly remote but occasionally go into the office. If that worker later tests positive for the virus, organizations will need to have included in their policies a way to contact trace those with whom the worker was in contact and protect all those involved.

Kable encourages employers to look at the risk levels of their employees and understand how they will deal with their workforces – including the cultural implications that might ensue. Demanding that workers get vaccinated may or may not be the best strategy.

“Businesses that are taking a hard line and drawing that line hard and fast are experiencing turnover,” he said. “It remains to be seen to what extent you have a similar impact for non-healthcare businesses and it remains to be seen whether non-healthcare businesses are going to take that hard line and say ‘you must be vaccinated.’”

Employers are also advised to consider how they will handle requested exemptions to vaccine requirements. People with medical or sincerely held religious beliefs can be excluded from such mandates.

“Ultimately, businesses need to refresh and perhaps reengage on the way in which they are conducting what’s called an undue hardship analysis. I think that primarily is the route that’s going to be the most effective in terms of determining whether these requests for exemptions should be granted or not,” Kable said. “I have some concerns that digging deeply into medical histories, digging deeply into the sincerity of someone’s religious beliefs could create additional risk and challenge down the road.”

Testing Challenges

The financial aspects involved – especially for weekly testing of employees – concerns many employers. There is some speculation that the government may help subsidize those costs for a defined period.

Another challenge may be access to tests, especially with the current disruptions to the supply chain.

“In our experience with over the counter [test] kits, good luck finding those until probably December at the earliest,” Kable said. “PCR testing is still available, where you send it to a lab to get a result.”

In addition to weekly testing, some organizations are considering random testing for the coronavirus, similar to drug testing.

“I’d say it’s something we’ve been advocating as a best practice for our clients once testing was available,” said Scott Cherry, DO, Axiom’s Chief Medical Officer. “Obviously, you can have an approach to test symptomatic personnel, but because there is such a high proportion of asymptomatic infected people with significant viral loads, an approach can be some type of sampling of your workforce. Depending on how big your numbers are, having an approach that samples different regions and different periods goes a long way to show OSHA you are being proactive at seeing what is happening in your workforce.”

Employers, Cherry said, can go even further to show they are protecting their workforces by comparing the infection rates in their workforces with those of the local community. That will show if a company is having higher or lower infection rates.

“It can give insight into whether your protective measures, multi-layered approach is working or not,” Cherry said. “That’s a best practice. We’ve been very successful with this in the entertainment industry, where their infection rate is almost zero – much less than what the local community is seeing.”

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