Vaccine Mandates, Compliance, and Testing – What you Need to Know

On September 9, 2021, President Biden announced a series of actions as part of the federal government’s “Path Out of the Pandemic” plan. Among these initiatives were vaccine mandates directed toward the employees of several types of organizations, ranging from government agencies to healthcare organizations and federal contractors to midsize and large private sector businesses.  The Federal government is partnering with OSHA to enact it’s ETS on Vaccination and Testing – published on November 5^th, 2021.  The Emergency Temporary Standard acts as a proposal for a permanent standard to essentially help get more Americans vaccinated.

The vaccine mandates and ETS have been challenged in the courts repeatedly since first announced. As of this writing, a temporary stay has been placed by the courts on the enforcement of these regulations, leaving employers in limbo. So, what does that mean for your business?  How should you proceed? 

The initial goal of the ETS is to require mandatory vaccination for businesses and organizations that fall within these categories:

• Government employees who work for the Executive branch
• Military personnel
• Employees of federal contractors
• Employees of healthcare facilities receiving payments from Medicare/Medicaid
• Employees at companies with 100 or more employees

Companies under the regulation must choose between mandating the COVID-19 vaccine for anyone entering the workplace, or tracking vaccination status but allow unvaccinated, undeclared, or employees exempt from the vaccination to enter the facility on a daily basis after a negative test within the past 7 days.  The initial deadlines were November 22^nd, 2021 for federal employees, and January 4^th, 2022 for all other groups.  Again, the enforcement of the ETS has halted temporarily; however, OSHA fully expects to maintain the ETS and its original deadlines, and many covered employers are taking steps necessary to abide by it.

Determining whether you are a covered employer

The ETS applies to all employers that have a total of at least 100 employees (Full and Part-time, Exempt/Non-Exempt) at any time the ETS is in effect. Counting should be company-wide, not by location or work site. So, if a company employs mostly workers in the field or across many different job sites, that employer would still be covered by the mandate if the total number of employees in all locations was 100 or more.

The vaccination requirement does not apply to employees of covered employers who work from home, exclusively outdoors, or who do not report to a workplace where other individuals such as coworkers or customers are present. However, any fully remote employees must still be counted in the total number of employees. Therefore, an employer with 75 fully remote employees and only 25 office employees still employs 100 total people and is covered by the ETS.

What should employers do to prepare for the mandate?

• Create a vaccination policy
• Make a plan to collect vaccination information. Be prepared to keep this information separate from personnel files securely as it will be considered Personal Healthcare Information.
• Build your testing policy. How will the business manage the weekly testing, and how will the results be collected and maintained?
• Be prepared for accommodations. It may be helpful for the company to have a standard form for information requests, as well as submitting vaccine accommodations.

Non-Compliance

Noncompliance of the federal vaccine mandate will be considered violation of the Occupational Safety and Health (OSH) Act. Currently, a serious violation is subject to a maximum penalty of $13,653 per violation; and a willful violation can result in fines up to $136,532.  Employers must maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated. Employers must also maintain a roster of each employee’s vaccination status.

Who covers the cost?

The White House announced on November 4, 2021 that employers are not required to pay for or to provide the tests unless they are otherwise required to by state or local laws or in labor union contracts.

If an employee tests positive

Employers must immediately (yet temporarily) remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider. This includes both fully vaccinated and unvaccinated employees. The employee can work remotely, if that is feasible and they are not too ill to do so.  Employees can return to work once they meet the CDC’s “Isolation Guidance” criteria, or they receive a return to work recommendation from a licensed healthcare provider.

Employee Exemptions

Employees have two potential exemptions they may request.  Religious exemption– Employers must accommodate the sincerely held religious belief of an employee, under Title VII of the Civil Rights Act (Title VII), unless the accommodation creates an undue hardship. Medical exemption – Under the ADA, employers must reasonably accommodate an employee’s disability, unless doing so would create an undue hardship for the employer or endanger the health and safety of other employees.

Employees must submit their request with the exemption included.  An employer may request documentation as proof of the need for that exemption such as a doctor’s note.  Employers should also keep in mind that the EEOC states employers and courts “are not and should not be in the business of deciding whether a person holds religious beliefs for the ‘proper’ reasons.”  However, employers can ask employees for more information that asks them to explain how their religious belief conflicts with the vaccination requirement.  Employers can discontinue a previously granted accommodation if it’s no longer being used for religious purposes or if it begins to impose too much of a cost burden.

As of this writing, it is unknown when or if the ETS will be fully enforced; however, it is wise for covered employers to be prepared for the original January 4, 2022 deadline. For more information and links to OSHA resources visit the US Department of Labor website.

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