As we await publication of the Emergency Temporary Standard, or ETS, from the US Occupational Safety and Health Administration requiring private employers with 100 or more employees to ensure their employees are vaccinated or tested, many buyers with contingent workers are asking: Whose responsibility is this — our staffing providers or us? And how do we manage the consequences of imposing a vaccine mandate?
Who is responsible for implementing the ETS?
It is almost certainly going to be the responsibility of the employer to enforce the ETS which, in the case of contingent workers, will be the staffing firm that employs them. This is consistent with the Safer Federal Workplace Task Force Guidance that sets forth the obligations related to Covid-19 that are applicable to federal contractors that have already come into force.
The staffing firm will be responsible for setting up a process for checking whether employees are currently vaccinated and setting up a testing program for those who are not. Remember, if your organization is insisting on a vaccine mandate ahead of the ETS coming into force, there may be state laws that need to be taken into consideration. For example, in all states except Montana, it is lawful to inquire on the vaccination status of your employees, while twenty-one states have banned employers from requiring vaccine passports to work. On Oct. 11, Gov. Abbott of Texas passed an executive order prohibiting any entity in Texas from requiring vaccines from employees and customers. While it is likely OSHA’s ETS will override state laws that directly conflict with the federal rule, until the ETS is in place, those state laws prevail.
Who pays for testing?
It is currently unknown whether the OSHA ETS will require employers to foot the bill for Covid-19 tests, but if the enacted OSHA Healthcare ETS [1] or OSHA precedent that the employer is responsible for the cost of compliance with safety standards is any indication, the staffing firm will initially need to cover these costs. However, as this is a legislative requirement before a person can work, it is likely to be treated as a statutory expense, and contracts between staffing firms and their clients typically permit any statutory expenses to be passed on as a cost of providing that worker.
In addition to the cost of testing itself, any testing program must comply with applicable wage and hour laws [2] at both the state and federal level. Fisher Phillips [3] states these laws generally provide that time spent or receiving employer-required tests should almost always be treated as compensable time. According to the US Department of Labor [4], employers are required to pay employees for time spent waiting for and receiving medical attention (including Covid-19 testing) at their direction or on their premises during regular working hours under the Fair Labor Standards Act. Some states also require reimbursement of all business expenses. These costs may be passed on to the buyer also.
Who is responsible for granting any medical or religious accommodations?
Again, the employer is responsible for handling accommodation requests and determining if an employee must be provided an accommodation because of a disability or because of a sincerely held religious belief, practice or observance. The staffing firm should be the first port of call for contingent workers, and this should be clearly communicated to agency workers and independent contractors, who are also likely to be covered.
However, if the buyer is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, the advice [5] given by Bass, Berry & Sims for federal agencies and contractors is that both the agency and the contractor should review and consider what, if any, accommodation they must offer. It is widely acknowledged that staffing arrangements give rise to joint employment, so this advice is applicable for staffing firms and buyer clients too.
As it is administratively challenging, time-consuming and costly to contest whether an employee has a valid medical reason or religious belief, it is likely that most employers, including staffing firms dealing with a buyer’s urgent needs to have staff on site, will move straight to the issue of how to accommodate the request. With contingent workers coming into a client’s workplace, this must involve a discussion between the staffing firm and client to work out what is best for all parties concerned. For example, as a reasonable accommodation, an unvaccinated contingent employee entering the client’s workplace might wear a face mask, work at a social distance from co-workers or nonemployees, work a modified shift, get periodic tests for Covid-19, be given the opportunity to telework, or finally, accept a reassignment.
Staffing firm employers and clients should try to reasonably accommodate contingent workers with sincere religious beliefs or a disability if the workers ask for an accommodation, but they don’t have to provide accommodations that would result in an undue hardship, meaning significant difficulty or expense. The recently updated EEOC guidance on vaccine mandates [6] states that “costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business — including, in this instance, the risk of the spread of Covid-19 to other employees or to the public.
Where a buyer is concerned about the potential volume of contingent workers seeking an accommodation, the EEOC guidance explains that “a mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.” However, an employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship.
Until the text of the OSHA ETS is published, it is impossible to know what it will say, but it is unlikely to deviate from these principles established under case law dealing with health and safety. Staffing firms should prepare by establishing processes for requesting and verifying proof of vaccination and a testing regime, and buyers should also get involved and discuss with their vendors how to accommodate any requests for accommodation and what might constitute undue hardship. Both parties should also check their contract terms in advance of any direction as to who picks up the cost, to avoid any arguments at a later date.
This article is based information available at the time of publication; the anticipated OSHA Emergency Temporary Standard had not yet been published.