Large Iowa Employers: Should You Comply With the OSHA Vaccine or Testing & Masking ETS?
Posted on 01/12/2022 at 01:43 PM by Jill Jensen-Welch
After the last few business days, Iowa employers with 100 or more employees are likely wondering whether or not they should comply with the Emergency Temporary Standard issued by the federal Occupational Safety and Health Administration on November 5, 2021.
Let’s quickly review recent events and then address the burning questions.
On the morning of January 7, the U.S. Supreme Court heard oral arguments on motions to stay the ETS that had been filed by various business groups and state attorneys general. Most commentators believe the Court will issue a stay. No matter your opinion or wishes for the outcome, we all hoped the ruling would come out quickly, particularly because the first deadline in the ETS had been revised to become effective on January 10, 2022. As I write this, we’re still waiting on the ruling.
To complicate matters further, the Iowa Labor Commissioner Rod Roberts, head of Iowa OSHA, said this about the ETS late on January 7:
As a state plan state, the Iowa Division of Labor is charged with protecting the health and safety of those in the workplace and has the authority to enforce workplace safety and health standards for Iowa businesses. Iowa doesn’t have a standard requiring the Covid-19 vaccine or testing. But after closely reviewing the federal OSHA Vaccine Mandate, Iowa has determined it will not adopt the federal standard. Iowa has concluded that it is not necessary because Iowa’s existing standards are at least as effective as the federal standard change.
The Iowa Labor Commissioner’s decision here will be of little effect if the ETS is stayed by the Supreme Court because such a ruling will deliver a near-death blow to the underlying litigation over the ETS. However, if the ETS is not stayed by the Supreme Court, it will likely survive the larger legal battle. In that case, Iowa’s Labor Commissioner would be wise to reconsider his January 7th stance because it will put Iowa in breach of its OSHA State Plan obligations. That could lead to OSHA revoking Iowa’s State Plan and cutting off federal funding. As far as we know, no other State Plan state has said it will not adopt the ETS or something else “at least as effective,” as required by their agreements with OSHA.
Q: What should Iowa’s large employers be doing right now about the OSHA ETS?
A: The OSHA ETS is not in effect and will not be enforced in Iowa at this time. Iowa employers with 100 or more employees have flexibility and may choose to:
- Move forward with policies that would comply with the federal OSHA ETS, as it is currently written, to be prepared for that possibility.
- Cherry-pick from the OSHA ETS to devise policies that fit their culture and needs (e.g., not requiring weekly testing of the unvaccinated, not providing special paid leave for time off to get vaccinated), or
- Do nothing and maintain the status quo, whatever that is for your organization.
Iowa employers should, at minimum, follow the CDC’s COVID-19 Guidelines and any industry specific rules. We also recommend that Iowa employers have COVID-19 vaccination records on all employees.
Q: What should employers with multi-state operations do?
A: Multi-state employers need to determine whether each state where it has employees is governed by federal OSHA or by an OSHA State Plan. OSHA’s handy map makes short work of that. Then, they need to figure out what each applicable OSHA State Plan state is doing about the ETS, because it may differ. For instance, a state might adopt the ETS, as is, if they haven’t already done so, like Minnesota; a state might defy the ETS and refuse to do anything, like Iowa; or a state may adopt an even stricter standard than the ETS, if they haven’t already done so, like California. In states where federal OSHA handles enforcement, like many of the states bordering Iowa, employers had to be in compliance with the ETS as of yesterday, January 10. A lot could change if the Supreme Court issues a stay of the ETS, however.
This remains a very fluid issue and we expect our thoughts and recommendation to change in the near future, depending on the Supreme Court’s ruling. Keep your eyes open for further communications on this from the Labor and Employment attorneys at the Dickinson Law Firm. As always, you can call or email any of us with questions specific to what your organization should do.
Questions, Contact us today.
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