In theory, delegation sounds amazing. Do you want to pass off work to someone else so you have more time for other projects? Yes, of course you do. In practice, delegation is more complicated. It involves giving up control, something that may feel difficult for a new manager or someone with micromanagement tendencies. It involves prioritizing your workload and communicating clearly with your team. Easier said than done! Why is delegation so tough and how can leaders ensure they are providing their team members the right information to help them be successful?

Many managers are promoted because of their competency in their prior role. Read that again...their prior role. Let’s look at an example – a Marketing Associate, with skills in copywriting and SEO optimization, is promoted to manage their team. As a manager, they set the strategy, coach employees, and lead their team. They are no longer spending most of their time on execution, an area they clearly excelled in. Some naturally transition into a coaching role and love helping others figure out how to approach their work. The problem comes into play for those individuals who have a hard time passing the baton to a member of their team. Letting go of control can be tough, especially for someone who excelled doing the tasks themselves. New managers can start by delegating a low-risk project and slowly build up to passing off higher profile assignments after trust is gained.

It is key for managers in this situation to set up their teams and themselves for success when passing along a responsibility or task. Colin Boyd, international speaker and communications expert, created a simple delegation system called the P.A.T. model to remind leaders what key information needs to be passed along. “P” stands for purpose. This is the “why” of the assignment. What will happen if it is not completed? What will take place after this assignment? The purpose is the motivation that fuels ownership of the project. Encourage your employee to ask questions at this stage so they have the big picture. Without the purpose, you may find that people make a change to the project plan or a substitution that does not fit the bill. For example, you ask for holiday gifts to be sent to clients but hesitate to mention that your big client is allergic to nuts (a key detail when the plan was to order snack gift baskets!).

You are now ready for the “A” which stands for action. The level of detail you provide at this stage depends on the prior knowledge, experience, and education of your employee. Is your employee a new hire? It is likely a good strategy to provide a step-by-step project plan. No detail is too small! On the other hand, you can provide less instruction for more experienced staff since they have the know-how to fill in the blanks and make reasonable decisions. This is a good opportunity to ask the employee what information they need to successfully accomplish the project. Managers can put on their coaching hats here and involve their employee in identifying the right course of action. This is a great step to utilize when you consider who to choose for the project.

Finally, you are ready to move onto “T”, the timeline! A strong delegator will not just share a due date but also offer multiple points to touch base and check in on progress. Although you are delegating this project, you are still responsible as a leader to be available to help and coach as needed. This part is important – a good delegator gives enough space and time for the employee to make decisions along the way.

Effective delegation is part art and part science. Using the P.A.T. model can give managers the structure to delegate with confidence. Pro tip? Schedule an after-action review at the beginning of the project so you are setting the expectation that this is a learning opportunity. This makes feedback a part of the learning cycle and ensures that both the manager and employee will receive feedback.

Your first candidate interview of the day just flew by and you didn’t even pick up your pen. You have so much in common with the candidate that you chatted effortlessly. You both have two daughters, a love for hockey and you both grew up in a small Midwest town. You leave the interview confident she is a good “cultural fit” for your company and recommend an offer. If this sounds familiar, stop right there. This is your official wake up call. Relying on social interactions to make hiring decisions may mean you end up with a team of people who look, act, and think just like you. This pattern not only promotes hiring bias and discrimination but also has a negative effect on innovation in the workplace. Does this mean hiring for cultural fit is outdated? Not necessarily, but it does mean that your team needs a plan to assess a candidate’s cultural fit using facts rather than feelings.

“Go with your gut.” In many situations, this would be good advice. For example, your gut provides helpful cues in low-risk decisions like choosing a flavor of ice cream or selecting a book to purchase. But when it comes to assessing an employee cultural fit, your gut is an unreliable, and often unhelpful, source. It offers better insight into whether you could be friends with the person (i.e., Can I imagine having a beer at happy hour with this person?). A team member selected in this manner would be a better fit for a party invite rather than a high performing team.

Instead, reframe how your hiring managers think and assess fit. Start by introducing them to the concept of “cultural additive.” Think of this descriptor as a way to diversify skills and add dimension to the team. Instead of looking for clones, the team Iooks to fill gaps in knowledge, style, and experience. What new perspective can this candidate bring to the team?

Second, create search criteria that clearly outline what the position needs and how to assess it. Provide question options to your hiring team rather than relying on each person to put their unique spin on the interview. This level of clarity and detail will help your team level the playing field when assessing candidates. A candidate scorecard or other rating system can set expectations with the hiring team on what is important as it relates to culture. Are you looking for someone who is comfortable dealing with ambiguity? Then ask behavioral questions about how they have dealt with lack of information in the past. Clarity and measurable outcomes are key.

The term “cultural fit” is vague and can be easily misinterpreted. This may lead some to say that screening for culture is irrelevant. But before you throw out the baby with the bathwater, think about how your team can create structure to screen for meaningful cultural additives. With these tips, your team can make hiring decisions based on facts rather than relying on their gut or using social attributes as a determining factor.

The New Year is right around the corner. Many take this opportunity to set a big, hairy goal to work on their health, professional development, or relationships. These goals can look like losing 20 pounds by year end or read 3 new books a month. This renewed commitment to a goal is why gyms see a beginning of the year spike in new memberships. How long does this determination last? 12 days! A study conducted by Strava reported that most people dropped their resolutions by January 12. With this underwhelming statistic, how do people make big changes in their lives? BJ Fogg, a behavioral scientist at Stanford University, posits that we should lower our standards and start with tiny habits to create a domino effect of change.

Author BJ Fogg wrote the book, Tiny Habits: The Small Changes That Change Everything to explain the key ingredients needed to create lasting change: motivation, ability, and prompt. Motivation is the engine; it is the excitement that urges you to act. As you can imagine, motivation is often highest at the beginning when you start with a fresh slate. The less motivation needed to complete a task, the easier it is to add to our regularly scheduled routine. Identifying your “why” may bolster your motivation. The second ingredient is the ability to accomplish the behavior. Like a SMART performance goal, the change must be achievable with your current skills. And the final ingredient is a prompt. Think of this as the green light to go. Putting these three ingredients together creates a recipe for behavior change!

Often, new habits are not successful because you set your sights too high. Fogg recommends setting bite-sized goals that build competence and lead to more positive internal dialogue. This is good news because our internal narrator is usually piqued by what we do wrong, rather than what we do right. When you institute a small habit, you increase the number of opportunities to celebrate your successes.

Let’s look at a small change in action. You want to offer more positive feedback to your team. You decide you will start your day by sending a brief thank you for a job well done the day before to one team member. Nothing fancy, just a simple IM or email. Your prompt is turning on your computer in the morning (something you already do!). You collect small wins quickly since this task is a light lift. Your internal dialogue changes from “I am bad at giving feedback” to something like “I am the type of person who regularly offers gratitude.” Over time, this positive acknowledgement leads to more motivation to continue the practice and the cycle advances.

Contrary to popular belief, setting a new goal at work or home doesn’t have to be complicated. Research shows that “baby steps” may be most effective when trying to create a new routine. Tiny habits can accumulate to meaningful change. So, the next time you are tempted to institute a major life change, pull back the reins and start small.

 

In Corporate America of days past, the entire feedback process consisted of a once-a-year conversation led by your boss. The goal was to keep it short and painless – like a shot at the doctor’s office. Since then, a series of bells and whistles were added to make it more frequent, more detailed, and more inclusive. One of those enhancements was the introduction of the 360-degree review. In short, this tool removed from the manager onus of owning all your feedback by requesting feedback from a wide swath of colleagues. Your peers, direct reports, and senior colleagues may have more daily contact with you and thus were able offer new insights.

Your company may benefit from a 360-review process. However, before rollout, set the tone for this process to avoid common user errors.

Focus on development. You review restaurants on Yelp or are asked to complete a short survey after calling customer service at your bank. Feedback has become mainstream in all parts of our lives. It is important to clarify how 360-degree feedback will be evaluated and used. Hesitant users may resist because they are not comfortable with their performance being “dinged” by a colleague. So, instead of integrating this as a part of performance reviews, introduce it as a tool that employees can use for development. The feedback is for their knowledge only – they choose how/if to integrate it into their new mode of operation and whether they would like to share with their manager. This provides a layer of security and empowers the employee to own their development!

Encourage face-to-face delivery. One of the rabbit holes some companies fall into is overreliance on technology for feedback. Similar to social media, some individuals will add comments in an anonymous forum that they would not dare say in person. Feedback is actually an exercise for both parties as it encourages participants to think and prepare to share comments. This is valuable in and of itself! Do not let in-person feedback die because of a fancy 360 system. Encourage people to identify themselves in their feedback and meet to discuss the feedback. This is a part of building a healthy work relationship.

Offer post-review coaching. So, now what? You have a good process in place, but employees are doing nothing with the information. As a result, the organization is getting sick of requests for feedback. The best laid plans – development comments and live conversations included – can go awry if employees do not feel it is adding value. The truth is many employees need support to implement a development plan. This is where performance coaching comes into play. A qualified coach can help employees interpret the feedback as a whole and aid in converting this into clear, developmental goals.

Employee development is part art and part science. The field will continue to change as employee expectations and business needs evolve. In response, companies need to be flexible to innovate, try new things and be open to rethinking when the plan doesn’t work. Setting the tone for future 360-degree reviews can help ensure that employees know what to expect and participate openly.

Successful business leaders often thank their mentors publicly for the impact they had on their career. Strong mentoring relationships are proven to help mentees (the employee seeking mentorship) in numerous areas, from increased job and company satisfaction to higher pay and more rapid promotion. Additionally, mentees report stronger communication and confidence outside of work. So, it is likely no surprise to hear that most Fortune 500 organizations include mentoring programs as a company benefit. However, a mismanaged mentoring program staffed with disengaged employees results in little benefit and can do more harm than good! Something must change. While many options are available, a good place to start is by asking mentees to be intimately involved in the process of seeking mentorship.

Mentorship programs of days past were often managed by Human Resources. HR dutifully identified mentors and assigned them to mentees. This “sit and wait” approach meant that mentees had little skin in the game. If a mentorship placement was not fruitful, they could just ask for a new assignment. This hands-off approach meant that an intermediary was responsible for collecting the very nuanced needs of the mentees and then recruiting mentors who hopefully had the time and skill set to support them. This coordination involved very little input from the mentee who, in theory, knows best what areas in which they are looking for support. Think of it this way... would you have someone else select your college course list for the semester or curate your Spotify playlist? Likely not. You would take recommendations from others but make decisions on your own. Why not apply the same mentality to mentee involvement?

Additionally, evidence shows that the most fruitful mentoring relationships are created naturally. They are not orchestrated by a third party and don’t start with the question, “Will you be my mentor?” Statistics show that less than 15% of mentor relationships start with a formal request like this. They likely result from interaction on a project, a committee, or client engagement. In theory, your need for mentorship will change as the mentee develops. Today, you are looking to polish your public speaking skills. Next month, you are seeking feedback from individuals who attended a graduate program you are eyeballing. Your needs change, thus, you will look for different types of mentorships. Identifying and finding ways to network internally and externally are the most important parts of seeking mentorship.

Subpar mentoring programs can be damaging to employees. And let’s face it, no one will be as invested in their professional development as they are! So, let’s get mentees involved early and often in the role of identifying and seeking mentorship. It is a lifelong skill that will empower staff to advocate for their needs and support their growth. HR and management can get involved in supporting the mentorship programs in other ways, such as offering training on how to be a good mentor and how to network internally.

Does your daily work routine today differ from pre-pandemic times? If you asked workers whose main work location moved from a busy office to their home address, the answer is likely a resounding “Yes!” You lost regular occurrences that may not have seemed special at the time, but now they are gone, they suddenly have more meaning. It is the little things, like grabbing a piece of cake and singing an off-tune round of happy birthday for a colleague, or rehashing your weekend with an office neighbor, that now seem meaningful. “Water cooler” talk is one of those items. Can companies figure out a formula to recreate water cooler talk in a virtual environment?

Water cooler talk is a seemingly old school term referring to the casual social interactions and work small talk that take place spontaneously when you run into a colleague from down the hall while grabbing a snack or cup of coffee in the office kitchen. The interactions were casual, and topics ran the gamut from personal to work. These happenstance meetings where genuine conversations with a colleague you may or may not talk to on a regular day naturally contribute to building trust – an important part of a healthy culture. This was also the birthplace of many innovative ideas, a fact embraced by the late Steve Jobs. Apple invested $5 billion in 2017 to build out the common area and café at headquarters. The cost makes sense when you consider that water cooler talk leads to new ideas and increased profit.

There is no doubt that corporate America is investing in technology. To put it into perspective, the number of Zoom users increased from 10 million pre-pandemic to 300 million in April 2020. One would assume that this results in more virtual collaboration, but these online playgrounds have their limits. While water cooler time was unsupervised, chats and conversations in a virtual platform may be visible to all in the group, including your boss. This was a concern of those trying to recreate this vibe using team collaboration sites like Slack. Additionally, virtual interactions like Zoom or Miro or any number of online social tools require planning. Everyone needs access to the technology, a link or app to join, and a time to connect. It removes spontaneity from the formula. The original water cooler involved none of the above, and that was a part of the magic.

The casual interactions that take place when you pass people in the halls or in the break room can no longer be taken for granted. The good news is that leaders are searching for a virtual solution to the water cooler conundrum. And surprisingly, your office kitchen is a difficult vibe to translate online and requires a bit of effort to fine tune.

When will the ETS take effect?

It depends on the state(s) in which you operate. Federal OSHA does not have jurisdiction over every private employer in the country. Rather, the federal government can largely enforce safety rules against private employers only in 29 states plus the District of Columbia and other American territories (e.g., subject to exceptions like federal worksites/military bases/navigable waters in other states). The remaining 21 states have approved “state plans,” where a state agency enforces safety regulations in that jurisdiction.

Federal OSHA states (private-sector employers): Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.

In Federal OSHA states, where the federal government enforces the OSH Act, the ETS will be effective immediately on November 5. Employers in these states have 30 days to comply with most of the requirements in the ETS. This means that by December 5, 2021, you must:

• Establish a vaccination policy that includes requirements for employees to report positive COVID-19 tests, positive COVID-19 employees to be removed from the workplace, and ensuring unvaccinated and not fully vaccinated employees wear face coverings when indoors or when occupying a vehicle with another person.

• Provide employees with information about the ETS, workplace policies and procedures, vaccination efficacy, safety and benefits, protections against retaliation, and laws providing for criminal penalties for supplying false documentation.

• Determine the vaccination status of each employee and required unvaccinated employees to wear face coverings.
• Provide paid leave for employees to get vaccinated.
• Establish a reporting policy and recordkeeping policy for COVID-19 related records.

The deadline for vaccines and weekly testing of employees to begin is January 4, 2022.

State OSHA plans (private-sector and local and state government workers): Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

In State Plan states, state government agencies enforce safety regulations. Those states have up to 30 days to adopt the federal ETS or alternative regulations or standards that are at least as effective as the ETS.

What if we have operations in multiple states?

You will need to follow the varying standards and timeframes applicable in each state.

What if we operate in a state (like Texas) that “banned” vaccine mandates?

This question is important because we anticipate that the Texas order may not be the last one employers see banning vaccine mandates. You can expect governors in conservative Federal States – including Louisiana, Oklahoma, Georgia, Florida, Alabama, and Mississippi – to issue similar orders to push back against the federal government.

The ETS preempts states from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a federally approved State Plan. In particular, OSHA states that the ETS invalidates any state or local requirements that bans or limits an employer’s authority to require vaccination, face covering, or testing.

To ensure that the ETS supplants the existing state and local vaccination bans and other requirements that could undercut its effectiveness, and to foreclose the possibility of future bans, OSHA defined the issues addressed by the ETS in section 1910.501(a).

During the time between the issuance of any governor’s order banning mandates and the adoption of the ETS in State Plan states, employers in such states will be in limbo with respect to their vaccine policies. If you are faced with that situation, you should comply with the governor’s order during the pendency of the directive but be prepared to change course once the ETS takes effect. Otherwise, you may risk receiving penalties for violating the order.

If you are unclear about a course of action or cannot reconcile differences between applicable state and federal rules, you should confer with counsel to develop an appropriate response.

Which employers are covered by the ETS?

All private employers with 100 or more employees must comply with the ETS, unless they meet one of the limited exceptions. Most significantly, federal contractors covered by the federal contractor mandate and healthcare employers covered by the Healthcare ETS are not covered by this ETS. Many employers who are covered by the Healthcare ETS will, however, have to comply with emergency regulations issued by CMS, which are applicable to participants in the Medicare or Medicaid programs.

Many office-based employers may not realize that they are covered because they have not had to interact with OSHA in the past. For example, financial institutions, insurance companies, automobile dealerships, law firms, and other professional and technical work environments are often unaware that they fall under OSHA’s workplace safety jurisdiction. Regardless of your prior experience with OSHA, if you are a covered employer, you should still comply with the ETS.

Please note that OSHA is also considering what requirements it may issue in the future for employers with fewer than 100 employees. OSHA has indicated that such requirements may include a strict vaccination policy and elimination of the testing alternative.

Why did OSHA pick 100 or more employees as the threshold?

OSHA says that there are at least four reasons supporting the 100-employee threshold:

1. The ETS is feasible for employers of that size to enact promptly and without undue disruption.
2. To enable the ETS to cover two-thirds of all private sector workers in the nation.
3. Because of the risk of spread in large workplaces where the deadliest outbreaks can occur.
4. Because the threshold is comparable to decisions in analogous contexts with similar size requirements.

How do we determine whether we have 100 or more employees?

Employers must count all employees across all of their U.S. locations, regardless of an employee’s vaccination status or where they perform their work. Part-time employees do count toward the total number of employees, but independent contractors do not. As in other employment law contexts, you should be cautious about independent contractors who may be misclassified and could be found to meet the legal definition of an employee.

For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS.

What about joint employment, related entities under an ownership umbrella, or franchise operations?

The ETS provides different standards for these business arrangements.

Related Entities

The ETS states that “two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.” The ETS does not give further guidance on what “safety matters” may be considered, nor does the ETS discuss whether OSHA intends to look at how an employer is treated under other employment laws when deciding if you are a single employer for purposes of the ETS. OSHA did state that traditional joint employer principles would apply “where both employers are covered by the ETS in terms of who is responsible for which workers,” but did not further discuss the role of joint employment principles in situations where there are multiple entities that each have fewer than 100 employees but are somehow related in ownership or operations. Accordingly, you should expect OSHA to decide coverage on a fact-specific basis. In assessing whether the ETS may apply to related entities, we suggest that you analyze several factors.

• First, and of primary importance, you should look at how interrelated your entities are in handling workplace safety issues. This includes whether you have integrated safety directors, whether you have responded to prior OSHA inspections through an umbrella entity rather than the entity that employed the employee(s) at issue, and other workplace safety matters. For example, consider whether your COVID-19 policies were developed by one entity to be used by several entities and what enforcement of those policies has looked like in terms of entity involvement.
• Second, consider whether you are considered a joint employer for purposes of other employment laws. We do not yet have enough information to gauge whether OSHA enforcement will look to such other employment laws to find coverage when several related entities would otherwise be below the 100-employee threshold.

Employers should also be cautious about making operational changes now in an attempt to avoid coverage. The ETS went into effect as of November 5, 2021.

Franchisor-Franchisee

The ETS explains that in a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes. Accordingly, the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.

Staffing Agencies or Similar Relationships

The ETS states that “in scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS.” This is the case even if the staffing agency and host employer would normally share responsibility for the workers under the OSH Act for other purposes. The ETS refers to OSHA’s existing guidance for temporary workers. While the ETS uses the phrase “staffing agency,” we expect that this analysis may also be applied to similar business models even if they do not use buzz words like “staffing agency” or “host employer.”

What about when multiple, unrelated employers all have employees at the same worksite?

The ETS discusses this issue and specifically references construction sites. In such cases, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees rather than the total number of workers at each site.

What about a change in the number of employees above or below 100?

If you have 100 or more employees on the effective date (November 5, 2021), the ETS will apply for the duration of the standard. If you have fewer than 100 employees on the effective date, you do not have to comply. If you subsequently hire more workers and hit the 100-employee threshold for coverage, however, then you would then be expected to come into compliance. Once an employer falls within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. So, once you are in, you are in.

OSHA explained that the decision to cover employers despite fluctuation above and below the 100-employee threshold during the term of the ETS was made because those employers will typically have already developed systems and capabilities in place for compliance, such that a decrease in the number of employees is unlikely to make them less capable of compliance.

Are there any exceptions?

Yes. There are two main exceptions for employers covered by other related legal requirements (described below). Some employees may also be excluded from the requirements of the ETS, which are discussed in more detail below, but in such cases the employer remains covered for all other employees.

1. Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Federal Contractor Vaccine Mandate) are not required to comply with the OSHA ETS.
2. Settings where any employee provides healthcare services or healthcare support services when subject to the requirements of 29 CFR 1910.502 (Healthcare ETS) are not required to comply with the OSHA ETS.

Does the ETS apply to remote employees?

The ETS requirements (such as showing proof of vaccination or weekly testing) do not apply to employees who never work in an office and never meet with co-workers or customers. However, you must still include those employees in your count to determine if you meet the 100-employee threshold.

OSHA also provides additional guidance for remote employees. Employees who work remotely some of the time, but not all of the time, will still need to show proof of vaccination or testing based on when they are at the workplace rather than at home. Specifically, OSHA has said that employers must ensure that employees who enter the workplace or interact with others as part of their job are tested for COVID-19 within seven days prior to returning to the workplace and provide documentation of that test result to the employer upon return. OSHA provided the following example:

If an unvaccinated office employee has been teleworking for two weeks but must report to the office, where other employees will be present (e.g., coworkers, security officers, mailroom workers), on a specific Monday to copy and fax documents, that employee must receive a COVID-19 test within the seven days prior to the Monday and provide documentation of that test result to the employer upon return to the workplace. The employee’s test must occur within the seven days before the Monday the employee is scheduled to report to the office, but it also must happen early enough to allow time for the results to be received before returning to the workplace.

A “workplace” is defined as a physical location (e.g., fixed, mobile) where the employer’s work or operations are performed. It does not include an employee’s residence, even if the employee is teleworking from their residence. Examples of fixed locations include offices, retail establishments, co-working facilities, and factories or manufacturing facilities. A workplace includes the entire site (including outdoor and indoor areas, a structure or a group of structures) or an area within a site where work or any work-related activity occurs (e.g., taking breaks, going to the restroom, eating, entering or exiting work). The workplace includes the entirety of any space associated with the site (e.g., workstations, hallways, stairwells, breakrooms, bathrooms, elevators) and any other space that an employee might occupy in arriving, working, or leaving. Examples of employees who have mobile workplaces include maintenance and repair technicians who go to homes or businesses to provide repair services, or those who provide delivery services.

Does the ETS apply to employees who work outside?

The ETS requirements (such as showing proof of vaccination or weekly testing) do not apply to employees who work exclusively outdoors. It is critical that employees have no work time indoors, even if brief. An example provided by OSHA was for construction workers who have a brief indoor meeting as part of the workday and spend the rest of the day outdoors. Those employees would still need to meet the ETS requirements.

You may make slight adjustments to your current work practices to ensure that your employees qualify for the outdoor exemption, such as by holding toolbox talks outdoors instead of in a traditional indoor location. Again, these workers do not have to comply with the ETS requirements but will still be included in the count to determine if you meet the 100-employee threshold.

Did OSHA provide any examples of employers that fall above or below the 100-employee threshold?

Yes, the following excerpt from the ETS provides several examples of how to count the number of employees.

• If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
• If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
• If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
• If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
• If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
• If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
• If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
• If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
• If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
• If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
• Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.

Will we be required to collect proof of vaccination?

Yes. Employers must require employees to provide an acceptable proof of vaccination status, including whether they are fully or partially vaccinated. If no proof of vaccination is provided, you must treat such employees as unvaccinated. Acceptable proof of vaccination status is:

• The record of immunization from a health care provider or pharmacy.
• A copy of the COVID-19 Vaccination Record Card.
• A copy of medical records documenting the vaccination.
• A copy of immunization records from a public health, state, or tribal immunization information system.
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. The attestation must state their vaccination status and that they have lost and are otherwise unable to produce proof. In such cases, you must require that employees declare that the statement of their vaccination status is true and that they understand providing false information may subject them to criminal penalties.

You should be cognizant that relying on the attestation form is permissible only when an employee truthfully cannot produce proof of vaccination. If you know the employee is not being truthful and rely on the attestation, you could be subject to penalties for failure to comply with the ETS or, under certain circumstances, criminal penalties for providing false information.

Finally, for employers that have collected proof of vaccination status before the effective ETS date and have retained such records, you are not required to re-evaluate vaccination status for fully vaccinated employees and are permitted to use any record of response, even if it is not listed as acceptable proof under the ETS. Under these circumstances, you are still required to create a roster of each employee’s vaccination status and are required to maintain proof of vaccination and the roster as “employee medical records” while the ETS is in effect.

What recordkeeping obligations coincide with collecting vaccination certification?

The ETS requires employers to maintain a record and a roster of each employee’s vaccination status. You must also maintain a record of each test result provided by each employee. These records must be maintained as confidential medical records and must not be disclosed except as required or authorized by this ETS or other federal law. The records are not subject to the retention requirements of 29 CFR 1910.1020(d)(1)(i) but must be maintained and preserved while the ETS is in effect. The standard OSHA 30-year record retention requirements do not apply.

The roster must list all employees and clearly indicate for each one whether they are fully vaccinated, partially (not fully) vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status. Although unvaccinated employees will not have proof of vaccination status, the standard requires the employer to include all employees, regardless of vaccination status, on the roster.

What best practices are recommended for proving vaccination status?

When collecting vaccination status, be careful about delving into an employee’s other health information. Simply tracking if an employee was vaccinated or having employees produce a copy of the vaccination card would not dig too deeply – but asking an employee why they were or were not vaccinated could be a disability-related inquiry, triggering additional obligations.

Additionally, remember that some state laws also define medical records with some jurisdictions specifically addressing vaccination records and the maintenance of the records. Be sure to comply with these laws in addition to the ETS.

Finally, maintain the records as you would any other confidential medical-related documentation (e.g., in a separate file, accessible to only those who need to know) and be sure to comply with all other state-specific privacy rules. You should also employ a reasonable standard of care with respect to digitally maintaining such information that would apply to other confidential or sensitive information.

If we mandate the vaccine as the government requires, do we have to provide exceptions for any employees?

Yes, federal law requires that you would still need to consider and possibly accommodate valid medical and religious accommodation requests if an employee requests to be exempted from the vaccination requirement. For this reason, you should ensure that your vaccination policies include provisions explaining how employees can request exemptions in the form of accommodations on the basis of medical or religious reasons.

• The Americans with Disabilities Act (ADA) establishes the federal framework applicable to evaluating accommodation requests based on medical reasons.
• Title VII of Civil Rights Act of 1964 (Title VII), as amended, provides the basis for requests for reasonable accommodation based on religion.
• State or local laws may provide similar protections.

What should we do if someone presents us with a medical accommodation request?

Under the ADA, you must evaluate requests to determine whether a “reasonable accommodation” would enable the employee to perform all essential functions of their job without posing a “direct threat” to the safety of themselves or others, which cannot be eliminated or reduced through reasonable accommodation. The ADA direct threat requirement is a high standard, requiring you to use objective information to show that the individual poses a “significant risk of substantial harm” in the workplace.

Accommodations can take various forms, depending on the circumstances, but may include remote work, other schedule changes, following additional safety precautions (including masking, distancing and frequent testing), changes in the working environment or possibly even unpaid leave, to name a few. You should interactively confer with the employee seeking accommodation but are not required to grant an accommodation that would impose an undue hardship on them. An undue hardship would be characterized by a significant difficulty or expense. “Undue hardship” can also be very challenging standard for employers to meet. You must therefore consistently evaluate accommodation requests in an interactive, individualized manner and document your communications and rationale for arriving at conclusions.

What should we do if someone presents us with a religious accommodation request?

As a best practice, you should confirm whether the employee’s accommodation request is indeed based upon a sincerely held religious belief or practice (as opposed to a more secular or non-spiritual reason for not wanting to get vaccinated), how receiving the vaccine would violate the employee’s beliefs, and what accommodation the employee is requesting. As explained in a previous Fisher Phillips Insight, you must confer with the employee interactively to determine what, if any, reasonable accommodation options exist. Accommodations may take the form of those described in the previous section. Again, you are not required to grant a request that would constitute an undue hardship. Although this process is also detailed and requires thorough consideration, the legal standard applicable to evaluating requests for accommodation based on religious beliefs or practices is less demanding for employers than the undue hardship standard applicable to requests presented under the ADA. Nevertheless, you should evaluate these requests individually and carefully, recognizing that these issues are likely to be the subject of considerable future litigation.

If an employee is exempt from the vaccine due to a reasonable accommodation related to a disability or sincerely held religious belief, do they still need to be tested weekly?

Yes. The ETS requires weekly COVID-19 testing of all unvaccinated employees, including those exempt from the vaccine due to a reasonable accommodation. However, if testing for COVID-19 conflicts with an employee’s sincerely held religious belief, the worker may be entitled to a reasonable accommodation.

Testing Option

What do we need to generally know if we are considering the testing option?

Generally, employees who report to a workplace where there are other individuals (or who interact with coworkers or customers outside of the home, collectively “the workplace”) and who are not vaccinated must be tested once weekly. Weekly testing applies to employees who report to the workplace at least once every seven days and employees must provide documentation of the most recent COVID-19 test result no later than the seventh day following the date the employee last provided a COVID-19 test result.

If an employee reports to the workplace less than once every seven days, the employer must ensure that the employee is tested for COVID-19 within seven days of returning to the workplace and the employee must provide documentation of that test to its employer. Employees who work exclusively outdoors are not subject to the ETS.

Can we test more often than seven days?

Unvaccinated employees need to be tested at least every seven days. You can elect to shorten this interval, but the minimum is every seven days.

What if an unvaccinated employee has had a prior COVID-19 infection?

Employees who have tested positive for COVID-19 within the immediately preceding 90 days do not have to comply with a testing requirement. Testing positive means the employee received a positive COVID-19 test or has been diagnosed with COVID-19 by a licensed healthcare provider. However, unvaccinated employees (regardless of whether they have previously been infected with COVID-19), must still wear a face covering in the workplace.

When must we comply with the weekly testing requirement?

Employers have until 60 days after the publication in the Federal Register (November 5) to comply with the testing requirements, and employees have completed the entire primary vaccination by that date do not have to be tested, even if they have not yet completed the two-week waiting period.

What about remote workers?

Workers who are completely remote do not need to be tested provided that the employee does not report to a workplace where other individuals such as coworkers and customers are present (the “workplace”). In other words, if you have an employee who comes into work once a month, the employee is not required to be tested every seven days when not appearing to work. Employers, however, must ensure that the employee is tested within seven days prior to returning to the workplace and provides documentation of that test result to the employer.

What is key about the timing is that the employee’s test must occur within seven days prior to that Monday the employee is scheduled to return in person but must happen early enough that will allow appropriate time for the result to be received by the employer.

How long do unvaccinated employees have to submit to weekly COVID-19 testing?

You are required to comply with the testing requirement of the ETS until unvaccinated employees are fully vaccinated (two weeks after the final shot) or until the ETS is no longer in effect.

In the case of two-dose primary vaccination series, an employee is not considered fully vaccinated until two weeks after the second shot and still needs to comply with the weekly testing requirement until this date, even within the two-week waiting period.

What kinds of tests will suffice?

Under the ETS, a “COVID-19 test” must be a test for SARS-CoV-2 that is:

1. cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the U.S. Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
2. administered in accordance with the authorized instructions; and
3. not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

This includes laboratory tests, including home or on-site collected specimens, proctored over-the-counter tests, point-of-care tests, and tests where they are collected or processed by the employer or observed by an employer.

Employees are not allowed to self-administer and self-read unless observed by employer or an authorized telehealth provider. Antibody tests do not meet the definition of a COVID-19 test for purposes of the ETS.

What are the limitations to at-home tests?

While OTC tests are authorized, OSHA requires an independent confirmation of the test to ensure the integrity of the result. This can be done by a licensed healthcare provider or point-of-care test provider (i.e., physician offices, urgent care facilities, pharmacies, school health clinics, drive-through testing sites). If an OTC test is being used, the employer can validate the test through the use of a proctored test that is supervised by an authorized telehealth provider. Alternatively, the employer could proctor the OTC test itself.

What is pool testing?

“Pool testing” can satisfy an employer’s testing requirements under the ETS. Pooling means combining the same type of specimen from several people and conducting one antigen lab test on the combined pool of specimen. If the pooled specimen is negative, all employees who participated in the test are considered negative. If the pooled specimen is positive, additional individual testing is required to determine which employees are positive or negative.

Should we administer OTC tests? 

While the ETS allows for employers to proctor the OTC test, we caution employers from administering the tests as it may implicate various privacy laws and regulations. You can, however, allow the employee to self-administer and then review the results in the employee’s presence to meet the testing requirement of the ETS.

What if an employee says they need a medical or religious accommodation preventing them from being tested weekly?

OSHA directs employers to the EEOC’s guidance relating to COVID-19. If vaccination, weekly testing, or wearing a face covering conflict with an employee’s sincerely held religious belief or practice, the employee may be entitled to a reasonable accommodation under Title VII, so long as such accommodation does not cause an undue hardship for the employer.

For employees who have a disability or medical contraindication to weekly testing, you should comply with the ADA to determine what reasonable accommodations are available that would not cause a direct threat or create an undue hardship.

Who pays for the tests?

The ETS does not require employers to pay for the cost of COVID-19 testing. However, an employer may be required to pay for COVID-19 testing if required by other laws, regulations, or a Collective Bargaining Agreement.

For example, if an employee was exempted from a COVID-19 vaccine requirement due to a disability or medical contraindication to the vaccine, you would be required to pay for testing as an accommodation under the Americans with Disabilities Act (ADA). Additionally, some states (such as Kentucky) require employers to cover the cost of any employer required test.

Are employers required to pay for the time employees spend testing?

The ETS does not provide a clear answer on whether employers must pay employees to test, and only states that the “ETS does not require employers to pay for any costs associated with testing.” Whether “costs associated with testing” include paying for time spent testing is unclear.

Under current DOL guidance, employers are required to pay employees for time spent waiting for and receiving medical attention (including COVID-19 testing) at their direction or on their premises during regular working hours under the Fair Labor Standards Act (FLSA). This likely includes required testing occurring on employees’ days off if such testing is necessary to perform their jobs safely and effectively during the pandemic.

However, during a stakeholder webinar on November 4, 2021, Department of Labor officials stated that the DOL’s Wage and Hour division will be updating its guidance on the impact of the ETS on federal wage and hour laws, so this may change. Until the DOL clarifies whether an employer is required to pay for an employee’s time getting tested, it is recommended to err on the side of caution and pay employees for the time spent testing. To help avoid the burden of this expense, you can opt to have testing on your worksite.

What if there is a shortage of testing supplies or the lab an employer uses is backed up?

OSHA has determined that, as of the November 5 effective date, there are sufficient COVID-19 testing supplies available and laboratory capacity to meet the requirements of the ETS. If you are unable to comply with the testing requirements of the ETS due to inadequate supply, OSHA will look at what efforts you make to comply with the testing requirement and will consider not enforcing the ETS requirements in situations where you can show good faith in attempting to comply with the standard.

If you encounter a shortage of testing supplies or laboratory backlogs are impeding your ability to comply with the ETS, you should contemporaneously document these events and make every effort to comply until the supply is replenished or the laboratories are no longer backlogged.

Do we still have to report COVID-19 fatalities and hospitalizations?

OSHA removed the 24-hour hospitalization and 30-day fatality reporting parameters. Thus, you must report any hospitalization or fatality from a work-related COVID-19 case no matter when it occurs.

What do unionized employers need to know?

It remains to be seen whether and to what extent unionized employers would be compelled to bargain over the decision to effectuate compliance with the new mandate (or at least the discretionary aspects with respect to vaccines vs. weekly testing) under NLRB doctrine. At a minimum, you should prepare for a corollary obligation to bargain over the effects of that decision on demand. In the meantime, non-union employers should consider the practical implications of compliance from a labor relations perspective, as unions may attempt to leverage aspects of the new requirements for organizing purposes. On a September 10 webinar, Labor Department officials confirmed that the ETS will not change any collective bargaining agreement obligations, similar to all other OSHA standards.

What if we are a federal contractor?

The ETS does not apply to workplaces subject to Executive Order 14042, covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (“Federal Contractor Mandate”). Employers covered by the Federal Contractor Mandate are subject to different requirements.

What if some of our workforce is covered by the Federal Contractor Mandate and some of our workforce is not covered by the Federal Contractor Mandate?

If you otherwise meet the requirements of the OSHA ETS, the portion of your workforce not covered by the Federal Contractor Mandate will likely be subject to the OSHA ETS requirements.

If our employees are subject to the Federal Contractor Mandate, will we be required to test employees who receive an approved exemption from the Federal Contractor Mandate?

It depends. Each federal contractor employer must evaluate its own circumstances to determine appropriate accommodations. Federal contractor employers exempt from the OSHA ETS do not currently have a separate requirement to test an employee who seeks and has an approved accommodation (unless a federal agency or worksite requires testing). However, employers must comply with Title VII and the ADA, which implicates direct threat to health and safety as the underlying reason that vaccination may be mandated in these workplaces.

If there is another accommodation outside of testing that is available, you can provide that – it doesn’t have to be testing. However, there are not a lot of options outside of testing beside masking and social distancing, which are largely already required by the Federal Contractor Mandate. It likely would not be enough under Title VII/ADA to simply state that testing does not have to be provided because of the exemption from the OSHA ETS. For example, if a workplace COVID-19 case results in death and the employer was not taking safety precautions such as testing for those with exemptions, then the employer would need to explain why it chose to forego testing.

It is also important to note to that federal contractors may be subject to more stringent requirements imposed by a worksite (e.g., only those who are fully vaccinated may enter).

What if we are in the healthcare industry?

The federal Centers for Medicare & Medicaid Services (CMS) has issued a separate workplace vaccine mandate to encompass hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition of participation in the Medicare and Medicaid programs.

Legal challenges have already been filed against the ETS, and more are sure to come – the ETS has already been temporarily blocked by a court order until it can be reviewed by the federal court.

Fisher Phillips has developed a five-step action plan you can implement immediately to put yourself in the best position to comply with the ETS.

"I am so busy.” This is a standard response if you ask a handful of people how work is going. For many, busy is a positive response. It implies they are needed at work and passionate about what they do. But for others, this busyness feels more like an anchor pulling them down, like they are running toward a finish line they can’t reach. It means they wake up each day feeling behind. Carrying a “to do” list that doesn’t seem to be getting shorter can turn into feelings of guilt or shame, further negatively impacting the individual. Those who feel this burden can try to turn this dread into excitement by practicing self-compassion and recalibrating priorities.

Those under a mountain of work without relief in sight should take time to strategize. It may sound counterintuitive to spend time planning, but this step will help you recalibrate priorities. First, look at each task on your list and evaluate the level of urgency. If something doesn’t need to be done this week, move it to another list and off your action items. Second, evaluate whether you can get help on the task. Do you need to be the person to complete the task, or can you delegate it to another team member? Often, we are overwhelmed by responsibilities that could be moved off our plate for one reason or another. Freeing up your time for urgent items that you must own can shrink your priorities and be used as a guide to help you determine what projects to take on in the future. This is especially important for “yes people” who tend to accept assignments without thinking twice.

You cannot be all things to all people. When you are hitting it out of the park as a spouse or friend, you are likely not able to put in the same effort at work and vice versa. You are but one person. Instead of beating yourself up, try being generous with yourself. How can you reframe the situation to focus on your value instead of a deficit? The words you use to speak to yourself are very important and impact your actions. Look for opportunities to acknowledge your work. For example, what if you chose to celebrate your accomplishments at the end of each day? It is easy to overlook what you were able to get done when you feel like work is piling up.

No one wants to get up in the morning and dread going to work because of an intense pressure to catch up. Neither does anyone want to carry feelings of guilt or shame home, interrupting time you should be enjoying away from your desk. Your time is valuable and can be reclaimed by being gentle with yourself and taking another look at your priorities.

As a manager, you shoulder the responsibility of leading your team to accomplish big, hairy goals. When deadlines are tight, your gut instinct may be to get it done quickly as possible. So, you use a directive style to tell employees exactly what to do, leaving little room for error. While this may be appropriate for entry level staff or new team members, it is likely an ineffective approach for experienced team members eager to further develop their problem-solving skills. Today’s leaders should develop a repertoire of tools they can call upon depending on the situation. Coaching is one of those key skills. Managers can start to build this competency by using these recommendations.

1. Pause before responding. Historically, managers were promoted because they had subject matter expertise in a specific area. A phenomenal engineer was tapped to lead a team. A star salesperson was pulled from the ranks to oversee a region. Times are a-changing. As a result of rapid innovation and technology advances, today’s managers may lead teams who have more knowledge in a specific area than they have. In this case, managers should take a different approach when employees come to them with questions or problems. Instead of jumping in to solve a problem or direct an employee, managers should pause. Listen to the facts of a situation. Allow time for the employee to explain and process their thoughts before you chime in.
2. Avoid the question, “why?” Questioning is at the heart of a coach approach. After giving the employee the floor to thoroughly explain, managers can practice this technique by asking questions to help the employee sort out their thoughts. Dig into the what, where, who and when of a situation. Often, the individual will identify a solution out loud during the discussion. Bingo! One note of caution - use the “why” question sparingly. It tends to put people on the defensive. Instead of opening up during the conversation, they build walls to protect themselves from being blamed for an error.
3. Start with spot coaching. Managers may hesitate to start coaching because they believe the time commitment is too great. A leadership study conducted by Daniel Goleman concluded leaders were least comfortable using coaching in their managerial style and described it as “slow and tedious work.” The truth is that using coaching techniques are not limited to formal and lengthy meetings. You can apply this framework in conversations that take place throughout the day – in a team meeting or while discussing a project in passing. Start by disregarding the assumption that you know the answer, and act on your curiosity. Your inquisitive example is a great model for other team members as well.

One of the outcomes of the past 18 months of market instability is that employees are reevaluating how work fits into their lives. Employees are looking for more from their workplace: more support, more resources, more flexibility. One of the people they are seeking more support from is their manager, and managers must be agile to meet the needs of team members. One way to exercise your flexibility is to add a few new techniques to your managerial toolkit – building your coaching muscles is a great place to start!

Jargon is commonplace in the business world. Take job descriptions for example. Different companies and industries latch onto distinct phrases in their write-up of the environment, role, and requirements. Those “in the know” may interpret this word choice as validation that they are a good match for the position. Unfortunately, this means those with different backgrounds and experiences may be confused or even put off by the verbiage. Recruiters beware: as a result of this word selection, you may be discouraging diverse candidates from applying for a role where they, in fact, meet all the qualifications.

Complicated or vague words and phrases like “cloud-forward,” “bespoke” and “self-starter” clutter many job descriptions. Canva recently conducted a large-scale study of more than six million online job descriptions. Their results showed that jargon was widespread across the professional world. More than 35% of job postings contained corporate lingo that was difficult to understand or left room for interpretation. The biggest offenders? The tech industry and the state of Washington! In fact, more than half of all job descriptions in Washington were colored with unintelligible catch phrases.

Upon closer review, it appears there is a mismatch between employer intent and outcome. Most job description authors approach this process with the goal of using terms they think will be attractive and familiar to qualified candidates. Unfortunately, too much lingo may have the opposite effect on potential diverse hires. Applicants are put off by the complicated jargon and may assume they are not qualified for the job if they don’t understand the description. This response is seen to affect a range of potential respondents including those from disadvantaged backgrounds, non-native speakers, and younger applicants in the 16- to 24-year-old age group. Your word choice may also affect whether female applicants are drawn to the role. Using stereotypically masculine language such as “aggressive” or “hard-hitting” may send a subconscious message to women that they are not welcome to apply. Interestingly enough, the reverse is not true; men apply regardless of the frequency of traditionally feminine words.

The trend of using catchy terminology has an adverse impact on who does, and does not, apply. The solution involves taking a step back. Try using commonplace language that is easy to understand. Instead of saying “think outside of the box,” try “come up with new and interesting ideas related to xyz  project.” Be specific! Vet your job requirements before putting pen to paper. Identify the actual needs and speak to the audience who may have these qualifications. Avoid using phrases that require interpretation or use of a business dictionary. Simple is better. It is fair to say we are all “on the same page” on this topic.

Before initiating the IDR process, disputing parties must initiate a 30-day open negotiation period. If open negotiation fails, either party may start the IDR process. If the parties cannot agree on a jointly selected certified IDR entity, or if the jointly selected certified IDR entity has a conflict of interest, the Departments will select a certified IDR entity. The parties will submit their payment offers along with supporting documentation, and the certified IDR entity will issue a binding determination by selecting one party’s offer.

When making a payment determination, certified IDR entities must assume that the QPA is the appropriate OON amount. The certified IDR entity must consider any credible permissible information submitted by a party. For the IDR entity to deviate from the offer closest to the QPA, however, any information submitted must clearly demonstrate that the value of the item or service is materially different from the QPA.

The IDR process will proceed according to the following guidelines:

Independent Dispute Resolution Action	Timeline
Initiate 30-business-day open negotiation period	30 business days, starting on the day of initial payment or notice of denial of payment
Initiate IDR following failed open negotiation	4 business days, starting the business day after the open negotiation period ends
Mutual agreement on certified IDR entity selection	3 business days after the IDR initiation date
Departments select certified IDR entity in the case of no conflict-free selection by parties	6 business days after the IDR initiation date
Submit payment offers and additional information to certified IDR entity	10 business days after the date of certified IDR entity selection
Payment determination made	30 business days after the date of certified IDR entity selection
Payment submitted to the applicable party	30 business days after the payment determination

 

Additionally, the IFR expands the scope of adverse benefit determinations eligible for external review to include determinations that involve whether a plan or issuer is complying with the surprise billing and cost-sharing protections under the No Surprises Act and its implementing regulations. In addition, under these

interim final rules, grandfathered plans that are not otherwise subject to external review requirements will be subject to external review requirements for coverage decisions that involve whether a plan or issuer is complying with the surprise billing and cost-sharing protections under the No Surprises Act.

Conclusion

The regulations in the IFR become applicable to group health plans for plan and policy years beginning on or after January 1, 2022. However, the IFR is subject to a public comment period that will close in December 2021. We will continue to monitor this and other related developments under the No Surprises Act and provide ongoing updates as needed.

This information has been prepared for UBA by Fisher & Phillips LLP.  It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.