Although the EHS has some clear advantages for occupational safety, it also brings new risks for companies to the fore. For one thing, the ETS is likely to expand the overall set of employers’ legal obligations and not avoid the need to keep pace with future changes, Pearce noted, adding, “Despite the existence of a single national standard, organizations should not disregard probability ongoing additional regulations at state, district or even municipal level. “
Many companies have already introduced some COVID-19-specific standards in their workplaces. It would have been hard not to if companies wanted their employees to feel safe at work. More common changes included employers requiring workers to report symptoms themselves, keeping symptomatic workers off and managing their return, providing personal protective equipment (PPE), and requiring social distancing.
Then, on January 29th, OSHA released guidance that predicted what would be on the rise with respect to the EHS, meaning all companies should now prepare for new workplace standards.
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“What I hear and what I tell policyholders is that this is not just about COVID-19, it will be a new standard for all infectious diseases in the future,” said Jeff Corder, vice president of loss control at AmTrust. “I tell policyholders of all sizes to do this, even if you are a two or three person company.”
The main highlights of the January guidance, according to Kelley Barnett, vice president and corporate counsel – Labor & Employment at AmTrust Financial Services, are indications of the need for companies to make the vaccine available to their employees.
“It [also] refers to face coverings and, more importantly, recent CDC guidelines that people should wear two-layer face coverings, ”she listed. “Another highlight, which I think is particularly important, is that companies must set up a system for communicating their COVID-19 prevention guidelines and train their employees and supervisors in these guidelines. You also need to set up an anonymous reporting system for employees who have concerns about how a company or its managers are implementing these guidelines. “
This last component is particularly important from a legal perspective as OSHA persists in adhering to its anti-retaliation guidelines and wants to ensure that workers have the opportunity to report concerns in a safe and non-punitive manner.
However, the first component that Barnett mentioned about vaccines is also important when you consider the many business questions that it poses, such as: B. whether vaccines should be made mandatory for workers or only encouraged.
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“Most companies don’t mandate this because it creates a couple of different legal landmines. But even for those encouraging their workforce to get the vaccine, there are still some legal and compliance issues to think about.” said Barnett. “The first is incentives – many companies want their employees to take the vaccine. The first thing that comes to their mind is to provide an incentive to get them to do it, whether it’s a couple of hours or a day of PTO. Some companies offer cash or other incentives … But you need to be careful that the incentives are not so big that they become constraints. “
In other words, companies need to ensure that the incentive doesn’t turn a voluntary vaccination program into an involuntary vaccination program where an employee feels they need to sign up and get the vaccine.
The second issue that Barnett highlighted is vaccination status, which falls under an employee’s medical information. “Whether or not you receive the vaccine must be treated like confidential medical information and cannot be disclosed. I’ve seen this already happen at companies when an employee says, ‘I’m going back to work, but I want to make sure that everyone in my department or on my floor and in my work area is also given the vaccine,’ explained she, adding that this is not information that companies can share with affected employees.
The third landmine that comes up with vaccines is that companies must treat vaccinated and unvaccinated employees equally because vaccines are not 100% effective and those who receive them can continue to carry and spread the virus. This means that all employees must still follow the same guidelines, such as wearing masks and social distancing.
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Finally, there may be classes of employees who cannot take the vaccine because of a qualified disability under the Americans with Disability Act, or who cannot take the vaccine because of a genuine religious belief. Companies cannot force these particular employees to take the vaccine and may want to consider offering them the same incentives.
“I believe that employees who are unable to take the vaccine because of a qualified disability or who have a genuine religious belief that prevents them from receiving the vaccine must continue to be offered the opportunity to deserve this incentive,” he said . “If they don’t, I think they run a real risk of inadvertently discriminating against these classes.”
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