By Mark F. Kluger and William H. Healey
We know, it’s been a long time and you’ve been worried about us. Thanks for all the cards and notes but we’re fine. We’ve just been busy trying to figure out what the heck ETS stands for and learning the Greek alphabet. Holy Sigma Tau!
What’s up with the ETS? That one court stopped it, but technically only in Texas, Louisiana, and Mississippi (and those folks probably didn’t want it anyway). For the rest of us, the ETS lives, at least in theory. By now, you likely know that one federal appellate court will decide the fate of the ETS for all, with the 34 lawsuits consolidated under one roof. OHSA brought a motion to that court to dissolve the other court’s stay order and the briefs will be submitted this week. That decision may give us some insight.
In the meantime, out of consideration for everyone’s utter confusion, and showing almost human-like qualities, OSHA posted this on its website: While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. That’s no doubt the only consideration we’ll ever see from that agency. If you’re looking for a forecast
or want to put some money on the outcome of the case, here’s the deal: The case will likely be decided en banc, which is Latin for all the black-robed dudes. So there are 16 active judges on the court and look who put them there: 5 Bush II; 3 Clinton; 2 Obama; 6 Trump. You do the math. Shame on us for even suggesting that such an important decision will be determined by political affiliation.
Meanwhile, many employers remain in flux about whether to push forward with their ETS-compliant policies regardless of the outcome in court. Among the reasons is that the looming uncertainty for employees about vaccination and/or testing may be worse for morale than the risk of losing employees who refuse to be vaccinated (for those employers opting for a vax or go policy). In some cases, employers see the policies as a way to facilitate return to in-person work in 2022. This may be all the more true in light of the specter of OMICRON, which sounds to us like a galaxy far, far away from where humans will reassemble civilization after we succeed in blowing up this World.
Many large private employers already have successful vaccine mandates, like United Airlines, which defeated a court challenge in Texas (how ‘bout that y’all) and boasts a 99.5% vax rate. Others on the list include McDonald’s (do you want fries with that shot), Google (Google it), Amtrak (all aboard), Delta (but only for one variant), Walmart (attention Walmart employees), CVS, and Walgreens (duh, they better!)
Employers that already have vaccine mandates are now considering adding a booster requirement. In late November, the FDA and CDC approved the booster for all adults, to be administered 6 months after the last dose of the first series. You may recall that the CDC defines “fully vaccinated” as 2 weeks after the last dose, but there is now some noise that the CDC may change that definition to incorporate the booster so that those who are currently considered “fully vaccinated” may, without a booster end up on the naughty list. Hopefully, that change won’t occur before Santa comes.
As we recently told Yahoo Finance (do you like our new feature: Shameless Self-Promotion?), among the issues that you must now reconsider, particularly with the holidays upon us, are post-travel quarantine policies. The CDC has already reacted. Effective December 6, all travelers to the US (including citizens) must show a negative test taken no more than 1 day before heading this way regardless of vaccination status. Upon return, the vaccinated should test in 3 to 5 days and unvaccinated must do the same but also quarantine for 7. For domestic travel, no changes yet, with CDC still recommending that vaccinated domestic travelers test 1 to 3 days before leaving and 3 to 5 days after returning but with no need to quarantine (for now). The unvaccinated must quarantine for 7 days upon return with a test after 3 to 5 days. Without a test, CDC says the unvaxed should stay home for 10 days. The challenge for employers will once again be whether to follow CDC guidance as we approach the holidays, especially considering the significant impact on staffing. If an unvaccinated employee travels over the holidays, either internationally or domestically, CDC says to tack 7 days to the end of the vacation which will obviously pose a substantial personpower crunch for most employers unless remote work is doable. New Jersey follows the CDC but defines domestic travel as anywhere in the US for more than 24 hours except New York, Pennsylvania, and Delaware. Looks like Connecticut is getting coal this year. In NYS, ever since June, there’s been a big empty space where the travel advisory once was.
Other issues for you to reconsider are return to work timetables (if not already back) and vax/testing protocols. An equally immediate concern is whether to have in-person holiday parties with the usual free-flowing alcohol and strippers’ entertainment. The buzz is that while in-person parties are returning to some extent this year, they are smaller in scale and more so among employers with 50 or fewer employees—micro-parties if you want to sound cool like us. For
those willing to roll the dice on indoor bashes, pre-party testing is an option. Every crisis is an entrepreneurial opportunity with one company offering on-site PCR and rapid tests in this area at rates of $55 to $125 for rapid tests, with results in 10 to 15 minutes; and $125 to $225 per PCR tests, with results in less than an hour.
Speaking of testing, whether employers need to pay employees for the time to be tested and for the test itself remain in flux. Last week, the President told insurance companies that have declined to pay for screening tests since June, that they must cover the cost of at-home kits. We’ll see what the carriers say. Although unofficial, the NJDOL responded to an inquiry from a NJ employers’ association saying that if an employee chooses to be unvaccinated, employers need not pay them for the time to be tested unless the employer requires testing during work hours and/or tells them where to be tested. But last week, the NJDOL officially declared (see the third FAQ) that employees who lose their jobs because they refuse to be vaccinated or be tested will not be eligible for Unemployment benefits. Who knew they’d ever deny anyone UI benefits!
THIS JUST IN: NYC has announced that all private-sector employers in the city must have a mandatory vaccination policy in place by December 27. We have no details yet. Merry X-Mas to you too Mr. Mayor!
A lot to consider. We’re here to help. And we’ll be back soon with more helpful information and shameless self-promotion. Stay tuned.