OSHA Covid Emergency Temporary Order – What Financial Institutions Need to Know

When will the Emergency Temporary Standard take effect?

We do not know precisely when the Order will be published by OSHA or the effective date.  However, we do have clear indicators. OSHA released an Emergency Temporary Standard mandating COVID precautions in the healthcare industry, earlier this year.  That Order provided those organizations less than 14 days to implement technical compliance. With these emergency OSHA orders, the implementation window is extremely limited.

We also know that the Biden plan states that specific directives will be issued, starting on September 25. We see effective dates in the Plan starting in early October. With OSHA advising that it will be releasing the Standard “in the coming weeks,” we should plan for an effective date by the end of October.

Will there be legal implications?

We do expect legal challenges to the Standard. While some national trade groups have conveyed their support for the initiative, the scope and immediacy of the obligations will trigger federal district court litigation. We could see a federal district court enjoin OSHA from implementing this Standard, on substantive or procedural grounds. The problem is that we do not know and will not know whether the Standard is enjoined or what federal court districts or circuits are impacted by any such decision for some time. Federal court relief is uncertain.

What will we need to document to prepare for the Emergency Temporary Order?

Given the legal, mechanical and employee relations issues associated with this requirement, implementation will be difficult. Documentation and process are critical. We already know from OSHA that noncompliance will trigger significant penalties, up to $14,000 for each employee violation. We view the penalty as beyond extreme, but that is the leverage being utilized by the Administration.

OSHA is not a federal agency where we have frequent interaction in the mortgage industry. This Standard will require us to recognize that OSHA compliance is documentation intensive. We will need …

• Documents reflecting employee proof of vaccination, similar in many ways to the I-9
• To maintain documentation reflecting individuals qualifying as remote employees, and the workweeks in which individuals satisfy that exclusion
• Weekly testing records for covered employees

We will also need to be fully prepared to handle the employee relations communication challenges, the possible loss of some employees, and ADA – religious accommodation requests

We recognize that human resource professionals have been put to extreme demands over the past 18 months. While we see the possibility of federal court relief, waiting to begin implementation carries significant risk. This effort simply cannot be put together in less than 14 days, the time period OSHA provided to the healthcare industry. So we do believe that early actions are worth considering. With the guidance already provided by the Administration and OSHA, we have a very good sense of what we will encounter.

We can we do now to prepare until the Emergency Temporary Order goes into effect?

First, we do need to identify which of our employees are fully vaccinated and also identify those employees who strictly work remotely for the company. As we move through the month of October, we need to know the employee population subject to weekly testing.

Secondly, we need to study the availability of FDA-approved COVID testing in our markets. We know from many of you that testing capabilities are already limited in a number of states and counties. With this new obligation, obviously, those resources are going to become even more restricted. Upon implementation of the Standard, if we are not able to have employees tested on a weekly basis, we are going to be put in the position of having to make a decision between not having the employee work for us until they do get tested or run the risk of an outrageous OSHA penalty. Evaluating testing options and what will be necessary from the bank to get those tests administered is a second immediate priority in our mind.