Girish Pashilkar, CEO of BP Logix, shares his opinion on why employer inaction is not an option when it comes to Covid-19 vaccination and testing rules.
On Jan. 13, the U.S. Supreme Court reinstated the stay on the Federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing, which required private-sector employers of 100 people, or more, to ensure workers are tested or vaccinated against COVID-19.
Although this stay means the ETS hasn’t been officially struck down, legal experts agree that it is likely dead on arrival should it return to the Supreme Court to face arguments on its merits. This latest development might seem like good news for employers who are daunted by the prospect of complying with the ETS requirements, but that’s not necessarily the case.
The Supreme Court decision doesn’t affect the weight of the Occupational Safety and Health Act, the 1970 federal law that requires employers to develop and perfect methods to achieve employee safety in the workplace. And despite the ETS’s fate, employment law experts agree that doing nothing on the vaccination issue is not an option.
Whether or not the ETS passes, employers should still prepare to adopt a workplace COVID-19 vaccination and testing policy. Employers face significant risks to their company’s operations and overall well-being should they neglect to enact an effective policy. Below are four critical reasons why employers must take action to track employee vaccinations and testing.
1. Employers must contend with myriad state and local requirements
Even without federal guidelines requiring employers to implement vaccination policies, state and local governments have their own laws and mandates. For instance, California, New York, and Illinois instituted their own vaccine mandates months ago, and at a local level, cities such as Boston, New York City, and Philadelphia have announced vaccine requirements for many businesses that operate indoors. These laws are still in effect and create a complicated situation for employers operating in multiple states.
Multi-state employers must contend with workplace vaccination requirements that vary widely across numerous jurisdictions. For example, an employer may have to simultaneously accommodate regulations in states with strict employee vaccination mandates while also not overstepping its bounds in states with bans on requiring employee vaccinations.
While complying with multi-jurisdictional requirements means more work for HR, technology can play a crucial role in managing this complexity.
2. Vaccination and testing policies can reduce employer liability in the event of lawsuits
Another reason employers must get serious about an employee vaccination policy is to mitigate legal issues in the form of liability and employee lawsuits.
The OSHA Act’s “General Duty'' clause states that employers have a “general duty” to ensure a safe workplace for employees. Since this clause, still in force, predates the COVID era, the potentially fatal consequences of doing nothing to mitigate COVID’s spread in a workplace can result in costly litigation, penalties, and significant hits to a brand's reputation.
Consequently, there has been a rise in employment lawsuits related to COVID-19. According to the Jackson Lewis COVID-19 Employment LitWatch, there have been 287 cases citing workplace safety since March 2020. A notable example is a wrongful death suit filed in California. A See’s Candies employee sued the company after contracting COVID-19 at work and passing it to her husband, leading to his death.
The state appellate court ruled that the employee’s COVID-19 negligence claims aren’t subject to exclusive remedy provisions in the state’s workers compensation law. Sometimes called “the grand bargain,” these provisions aim to shield employers from civil litigation involving liability and negligence in exchange for providing injured workers financial compensation for workplace injuries. The court declined when See's cited exclusive remedy provisions to dismiss the lawsuit. It ruled that the “grand bargain” does not extend to injuries and deaths of non-employees because exclusivity provisions are an arrangement between employer and employee – and one with workers’ compensation benefits as the exclusive remedy, and not damages in court.
While states with stricter employee vaccination and testing requirements may already compel employers to cultivate a safe workplace, employers in jurisdictions with looser requirements should consider a policy that protects the company from litigation.
To effectively implement best practices, employers must stay abreast of guidelines from the CDC, OSHA, local health departments, and its state requirements. One way to reduce liability risk is to implement a policy that aligns with or draws from OSHA ETS guidelines. This policy acts as an affirmative defence in the event of litigation involving injuries stemming from employee exposure to COVID-19.
3. Tracking helps you manage COVID-positive incidents, abate staffing shortages
Monitoring vaccinations and COVID tests will help ensure compliance, but there’s another business benefit to consider: This activity allows employers to manage their operations more effectively.
Simply put, you can’t manage what you don’t measure. Without knowing employees’ vaccination or testing status, you can’t accurately assess the risks in your workplace, swiftly manage incidents, or stay ahead of potential impacts to revenue. Monitoring this data helps businesses take steps to avoid operating with a skeleton crew or temporarily shut down altogether.
Staying on top of vaccination and testing data helps mitigate the spread of COVID-positive cases. The right vaccine-tracking technology can help employers track employee vaccination and test data by automating the process and offering incident management features. If an employee tests positive, the system can trigger workflows for mitigating the spread to others and help facilitate the employee’s return to work once recovered and fit for duty.
4. Clients of staffing agencies may need proof to place workers
Starting a vaccination and testing policy is especially critical for staffing firms that put employees at client worksites. Staffing agencies working with numerous clients must accommodate the workplace policies of all clients or risk losing business.
Ensuring a staffing firm’s workforce complies with multiple clients’ policies is an administrative burden. The functionality of a reliable vaccine-tracking technology can let administrators easily create unique policies tailored to the demands of each client worksite.
With or without federal oversight, employers should prepare to implement an employee vaccination and testing policy to prioritise the overall well-being of their business. Implementing the right approach will help reduce their risks, avoid potential lawsuits, and maintain operations. Resources are available to help businesses track this data and mitigate potential problems before they cause severe disruption.
About the author: Girish Pashilkar is CEO of BP Logix, a leading low code automation platform for regulated industries. Under his leadership, BP Logix introduced the Vaccine Tracker to help staffing agencies, PEOs and manufacturing firms respond to the COVID-19 pandemic. Girish has more than twenty years of experience in setting up and growing businesses in the technology sector.
