October 25, 2021

Volume XI, Number 298


October 25, 2021

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Practical Strategies for Manufacturers Managing COVID-19 Testing, Vaccine Mandates

Manufacturing employers continue to feel the brunt of emerging and evolving trends related to the COVID-19 pandemic: workplace safety, labor shortages, absence management, remote technology, and employee retention — just to name a few. On the workplace safety front, mask mandates, testing protocols, and vaccine issues continue to make headlines, including President Joe Biden’s September 9, 2021, announcement regarding vaccine and testing requirements for companies with 100 or more employees. These developments have all employers looking at strategies for how to comply with an upcoming Emergency Temporary Standard (ETS) for employers with 100 or more employees from the Occupational Safety and Health Administration (OSHA).

For manufacturing employers, there are unique challenges and opportunities for managing their almost entirely non-exempt workforce on-site, often in geographically remote locations, politically charged regions, and across multiple shifts and 24/7 operations.

We continue to await OSHA’s promulgation of the standard, which the Secretary of Labor said would occur in a matter of weeks. In the meantime, many manufacturing employers are in a position to tackle policy initiatives and strategies for workplace testing and vaccination requirements, all with an eye on wage and hour compliance, bargaining obligations, and disability and health management best practices.

In preparation for broader COVID-19 testing requirements, what are manufacturing employers doing right now? Some are:

  • Partnering with states, like Tennessee, that offer access to COVID-19 testing at the employer’s facility (potentially without charge to the employer or the employee);

  • Collaborating with states that align with private testing laboratories to provide on-site testing for private employers;

  • Surveying employees for their vaccination status to determine the number of COVID-19 tests needed;

  • Securing testing kits for employees to use on-site at work;

  • Utilizing “vaccination toolkits” offered by states (including CaliforniaMinnesota, and Washington) to facilitate vaccine clinics for businesses on-site or at nearby locales, to maximize vaccination rates, help reduce time away from work related to vaccine access or vaccinated status, and reduce the need for additional testing;

  • Preparing processes and manager protocols to verify vaccinations and conduct weekly testing;

  • Communicating with employees to prepare for the ETS’s requirements; and

  • Preparing paid time and paid leave policies for vaccination, vaccination recovery, testing, and medical leave.

Additional strategies to prepare for compliance with the weekly testing requirement for unvaccinated employees contemplated by the upcoming ETS include:

  • Preparing to track time for on-site testing or vaccination for non-exempt employees during scheduled shifts;

  • Planning on-site or off-site testing options for second- and third-shift workers to test outside of regular business hours;

  • Identifying testing resources in order to reduce employee time away from work for testing and awaiting results; and

  • Curbing costs for employers and employees who are eligible to participate in state-paid programs.

With respect to on-site testing, it is important to coordinate with legal counsel to:

  • Evaluate the requirements of the ETS and any applicable state, federal, and local mandates, particularly requirements to use certain types of testing (e.g., Connecticut’s mandate does not permit at-home testing results to satisfy weekly test requirements);

  • Decide whether to collect and maintain testing results or require employees to self-report positive results only;

  • Determine a strategy to communicate with employees on new requirements and processes, as well as reminders to comply with ongoing weekly testing requirements;

  • Ensure protocols are current and Human Resources is ready to respond if an employee tests positive; and

  • Create a practical policy of enforcement for employees who fail to comply and ensure managers use it.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 284

About this Author

Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm

Courtney Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C.

Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters.

Mr. Malveaux represents industry on the Virginia Safety and...

Alison Jacobs Wice, Workplace Law, Counsel, Training, Litigation, Jackson Lewis Law Firm

Alison Jacobs Wice is Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. She represents management exclusively in workplace law and related advice, counsel, training and litigation.

Since joining Jackson Lewis in September 2003, and throughout her career, Ms. Wice has represented employers in state and federal trial, appellate and administrative proceedings throughout the United States involving the full spectrum of substantive issues covered by the firm's employment law practice. She provides advice and counsel to corporate clients on a...

Noorin Hamid Employment Attorney Jackson Lewis New Jersey

Noorin Hamid is an associate in the Monmouth County, New Jersey, office of Jackson Lewis, P.C. Her practice focuses on representing employers in all areas of labor and employment-related matters, with a focus on handling employment litigation matters and offering preventative counseling.

She represents clients in employment-related matters in both state and federal courts, as well as before administrative agencies including New Jersey Division on Civil Rights, New York State Division of Human Rights, New York City...

Sally Welch St. Onge, Jackson Lewis, preventive counseling attorney, EEOC law, employment litigation lawyer, performance management legal counsel

Sally Welch St. Onge is an Associate in the Hartford, Connecticut, office of Jackson Lewis P.C. Her practice is focused on employment litigation and preventive counseling.

Ms. St. Onge defends employers in state and federal court and before administrative agencies such as the Equal Employment Opportunity Commission and the Commission on Human Rights and Opportunities against claims of discrimination, harassment, and retaliation. In addition, Ms. St. Onge also advises management on various topics, including performance...