SHRM Hosts Members-Only Webcast on OSHA ETS

SHRM has mobilized to provide helpful resources to HR professionals and business leaders following publication of the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS) on the Biden administration’s COVID-19 vaccine-or-testing mandate for employers with 100 or more workers. 

SHRM will present a members-only webcast on the ETS at multiple times on Wednesday, Nov. 10, with remarks from Carol Miaskoff, legal counsel of the Equal Employment Opportunity Commission; law firm partners Karla Grossenbacher and Kristin White; and SHRM HR Knowledge Center experts. 

On Nov. 4, following publication of the ETS, SHRM’s External Affairs team hosted a “first-word alert” webcast for SHRM Advocacy Team members. Karla Grossenbacher, a partner at Seyfarth Shaw LLP, presented slides with key takeaways from the ETS. 

On Nov. 6, the 5th U.S. Circuit Court of Appeals temporarily suspended the vaccine-or-testing mandate “pending further action” by the court. The lawsuit was brought by state attorneys general and private employers that oppose the directive and claim that either OSHA exceeded its authority or the ETS is unconstitutional. The U.S. Department of Justice on Nov. 7 asked the court to lift the order and said, “The standard reflects OSHA’s expert judgment that these measures are necessary to mitigate COVID transmission throughout America’s workplaces.” The department, noting that similar challenges to the ETS have been filed with other federal appeals courts, requested the cases to be heard by a single court in a consolidated action. 

New Survey Reveals Mandate Anxieties Persist

SHRM surveyed its members on implementing the vaccine-or-testing mandate, and nearly 2 in 3 respondents said they are not supportive of the ETS.

The survey, conducted Nov. 4, shows HR professionals remain worried: 85 percent are very or somewhat concerned about their ability to implement the ETS, 64 percent said they need more information on how to lessen the impact on employee retention, and 60 percent are seeking more information on how to maintain employee morale.

Here are the top five concerns of HR professionals:

  • Impact to employee retention (cited by 85 percent of respondents).
  • Impact to employee morale (77 percent).
  • Potential costs of the requirements (66 percent).
  • Ability to track and enforce the requirements (65 percent).
  • How to handle a religious or medical exemption (64 percent).

Of employers with 100-plus employees, 35.8 percent are supportive of the ETS.

SHRM Statement on Vaccine-or-Testing Mandate

SHRM Chief of Staff and Head of Government Affairs Emily M. Dickens issued a statement in advance of publication of the OSHA ETS.

She called on the administration to release a draft of any proposed mandate and incorporate public comment rather than requiring employers to meet an arbitrary standard drafted outside the normal rulemaking process.

“Unfortunately, the announcement of this mandate is causing both confusion and concern in workplaces across the United States,” Dickens said on Oct. 28. “Small and medium-sized employers are especially troubled by the potential for workplace disruptions, the departure of workers who do not want to be vaccinated, burdensome documentation and new costs associated with COVID-19 testing.”

EEOC Provides Form for Religious Accomodations

The Equal Employment Opportunity Commission (EEOC) released a templatethat employers can use to evaluate religious accommodation requests by employees.

The form directs employers to ask employees about how the proposed policy conflicts with their sincerely held religious belief or religious practice. The form also directs employers to inquire about possible alternatives that would eliminate the conflict.

While courts have recognized that state governments and employers are permitted to issue vaccination mandates, the law still requires them to consider individual accommodation requests based on disability or religious grounds.

Iowa Expands Vaccine Exemptions for Employers

On Oct. 29, Iowa Gov. Kim Reynolds signed into law legislation that expanded medical exemptions for employees seeking a waiver from employer vaccine mandates.

Employers are required to waive vaccination requirements for employees who request a waiver and submit a statement that “receiving the vaccine would be injurious to the health and well-being of the employee or an individual residing with the employee.”

Moreover, Iowa employees discharged for refusing to get the COVID-19 vaccine are now eligible for unemployment.

EEOC Launches Artificial Intelligence Project

The EEOC is launching an initiative to closely examine the use of artificial intelligence in employment decisions.

While the commission began investigating employers’ use of AI in 2016, EEOC investigators received extensive training on AI over the past year.

The commission hopes AI and algorithmic decision-making tools do not lead to discrimination or perpetuate bias. The new initiative will “aim to guide applicants, employees, employers and technology vendors in ensuring that these technologies are used fairly and consistent with federal equal employment opportunity laws.”

SHRM Seeks Feedback on DACA

On Sept. 27, the U.S. Department of Homeland Security (DHS) announced a notice of proposed rulemaking (NPRM) to protect and preserve the Deferred Action for Childhood Arrivals (DACA) program.

This process will modify and improve existing filing processes and clarify DHS’s long-standing information sharing and use policy for DACA requests.

Do you have experience navigating the DACA program? We want to hear from you. Please take the SHRM DACA NPRM Survey. Your responses will help guide SHRM in drafting and submitting a comment to the DHS that reflects the experiences of HR professionals.

Protect Older Job Applicants Act Passes House of Representatives

The Protect Older Job Applicants Act (H.R. 3992), introduced by Rep. Sylvia R. Garcia, D-Texas, passed the House of Representatives on Nov. 4 by a vote of 224-200.

The bill would protect job applicants under the Age Discrimination in Employment Act by barring employers from asking an applicant’s age on a job application.

SHRM surveyed its members in late July and found that 79 percent of organizations do not ask for date of birth on a job application and 68 percent do not ask for a graduation date.

DOL Issues Rule on Paying Tipped Workers

On Oct. 28, the Department of Labor (DOL) released a final rule on paying tipped workers.

Under the Fair Labor Standards Act, employers can pay tipped workers $2.13 per hour if the pay amounts to $7.25 per hour when tips are included.

The new directive reinstates the “80/20” rule, which states that an employer may rely on the tip credit for workers provided no more than 20 percent of their workweek is spent on non-tipped support tasks. Additionally, employers must pay the full minimum wage when an employee is working on non-tipped duties for 30 minutes, even if the 80/20 rule has been satisfied. These provisions take effect Dec. 28. 

Beginning Nov. 23, the DOL said, it will issue $1,100 fines for each time an employer is found to have retained employee tips, which is a shift from the prior administration’s requirement that the violation be repeated or willful. The agency also clarified that managers and supervisors can only keep tips for services they “directly” and “solely” provide.

Gretchen Carlson Discusses Workplace Culture at INCLUSION21

SHRM Chief of Staff and Head of Government Affairs Emily M. Dickens sat down with broadcast journalist and author Gretchen Carlson for a one-on-one conversation at the SHRM INCLUSION 2021 conference’s closing general session on Oct. 27 in Austin, Texas.

They explored the creation and maintenance of healthy and harassment-free workplaces, survivor empowerment, and how to find common ground amid differences.

“When you decide not to silence your workers, you actually retain the exact people you want to retain,” Carlson said.

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Advancing Workplace Issues in 2021

SHRM is proud to be working with several organizations to highlight workplace issues in 2021. They include Fratelli Group, NAICU, Palladian Hill Strategies, Seyfarth Shaw LLP and Viatris.

As the Voice of All Things Work, SHRM pursues nonpartisan public policy to promote flexible, inclusive and equitable workplaces that help business thrive as talent is tapped, trained and empowered to reach its full potential. Policy not politics.

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