Phil Strach is an employment/labor attorney with Nelson Mullins and Chair of the NC Chamber’s Workplace Issues Committee
This week, the NC Chamber held a critical webinar and Q&A for the business community regarding the Occupational Safety and Health Administration’s (OSHA’s) newly approved and issued vaccine/testing mandate for employers – known as an Emergency Temporary Standard (ETS). If the ETS is upheld in federal court, it will present broad and significant impacts on any employer with at least 100 employees, which the N.C Department of Labor (NC DOL) estimates to include roughly 6,000 state businesses and 1.2 million North Carolinians.
In the webinar, NC DOL Commissioner Josh Dobson and I shared our understanding and perspectives on historical context of the ETS, possible outcomes, and what employers can do to prepare now.
Key takeaways from the conversation
• ETSs do not have a strong track record of being upheld in federal court; however, my advice at the moment for businesses is this: Don’t depend on the courts and assume they will strike this down. Start taking steps now to get prepared. Read the ETS (all 490 pages of it), scour the OSHA ETS website, decide how you want to modify it for your own operations, and begin looking at sample written policies, which subjected employers will be required to implement if the ETS takes effect.
• Because North Carolina has a State OSHA plan, the NC DOL has 30 days to either adopt the federal plan or come up with a state plan equal to or stronger than the federal plan.
• Under federal rules, the NC DOL would typically announce a decision within 15 days whether to enforce an ETS or come up with a state plan – both of which would go into effect in 30 days. Commissioner Dobson stated in the webinar, however, that while the ETS is making its way through the federal courts, North Carolina and the NC DOL will not take any action related to its enforcement. Click here to read Commission Dobson’s statement.
• IF North Carolina adopts the federal plan, the weekly testing requirement goes into effect in 60 days for unvaccinated covered employees, or on Jan. 4, 2022.
• Commissioner Dobson made it clear in the webinar that he may be limited in his authority to ultimately decide on approval, especially since North Carolina’s State OSHA plan could potentially be revoked over this decision – an outcome that could cause longer-term complications for job creators.
• The NC DOL and employers will not receive federal funding to comply with this ETS. For the employer, that would mean they or the employee will have to pay for costs incurred such as testing and federally mandated PTO.
• Be aware of the exemptions. For example, the ETS does not apply to employees of covered employers who work exclusively outdoors or to employees who do not report to a workplace where other individuals such as coworkers or customers are present.
• NC Chamber Webinar Recording: “Employer Vaccine Mandate: What Your Business Needs to Know”. I invite you to forward this link to your HR team as they’ll be on the frontlines of enforcing the ETS if it is upheld.
• NC Chamber COVID Resource Page: features key OSHA resources on the ETS, including FAQs.
• Commissioner Josh Dobson and I, Phil J. Strach, welcome any emailed questions you have.
In my role as an employment attorney and Chair of the NC Chamber’s Workplace Issues Committee, I’ve seen firsthand that our state’s job creators have played a key role in driving North Carolina’s progress on all fronts. Because the NC Chamber team understands that this ETS is complicated and comes with a great deal of uncertainty, they will be there to help guide you each step of the way – to dissect, understand, and implement this mandate – and most importantly, to help foster certainty in this uncertain time.
I think my webinar counterpart Commissioner Dobson said it best during the Wednesday event: “We’ll get through this together.”
Phil Strach, J.D.