– The heavily litigated Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS) has large employers across the country preparing for its implementation despite the rule’s uncertain legal future. While small employers are not currently included in the rule, they could be impacted by future mandates that may be enacted by federal, state, and local jurisdictions. With much attention currently being focused on large employers, what does this all mean for smaller employers?
There are cautionary steps small employers need to take now to be ready in the event they become subject to a future employee vaccination mandate. These steps focus on collecting vaccination data on their employees, developing human resources practices for managing that data, and updating their employment policies on COVID vaccination and testing, to name a few.
Collecting and managing vaccination data on employees presents a sensitive and complicated task for employers of any size. Policy-making decisions await small employers on how to ask for this confidential information, who can be exempted, options for testing vs. vaccination, masking requirements for unvaccinated employees, and what unemployment benefits, if any, may be available to employees that refuse to be vaccinated. Once these decisions have been made, small employers will also need to train their front-line managers and human resources staff on how to properly communicate these guidelines to employees.
Another important consideration for small businesses surrounds the confidentiality of vaccination information, how it is stored, and its relationship to other employee information. Who gets to see an employer’s vaccination data, and how is it shared?
Though OSHA has temporarily suspended its activities related to the implementation and enforcement of its ETS based on a recent United States Court of Appeals Fifth Circuit order, the landscape remains uncertain. Given this uncertainty, small employers should take heed and begin thinking about these challenges. The day may never come, but small employers could well be the next group to come under vaccination mandates.
Published November 17, 2021
Candace E. Johnson is an attorney at Carmody MacDonald and focuses her practice in the areas of labor and employment, real estate, and general civil litigation. Contact Candace at [email protected] or (314) 854-8647.
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