PREPARING FOR WORKPLACE VACCINE AND TESTING MANDATES
As part of our monthly Instagram Live series #AskAnthros, Anthros Director of Brand Management Dyannah Byington spoke with us about expanded workplace vaccine mandates and what employers can do to prepare now. We’ve edited her remarks for this blog.
By now, everyone has probably heard about the expanded vaccination and testing mandates that President Biden announced on Sept. 9.
There are 3 groups that these mandates apply to: federal employees, healthcare workers, and private employers with 100 or more employees.
In total, these mandates will apply to about 100 million employees, which is nearly two-thirds of all employees in the U.S. The biggest piece of this is private employers with 100 or more. That mandate alone applies to almost 80 million workers.
What does the mandate say?
Private employers with 100 or more employees must require employees be vaccinated or show a negative test result before coming to work each week.
How will the mandate be implemented?
This requirement is going to be implemented through the Occupational Safety and Health Administration (OSHA). Biden has directed OSHA to issue an emergency temporary standard (ETS).
OSHA has the authority to issue an emergency temporary standard in response to something that is considered a “grave danger” to workers. The ETS can remain in place for six months.
After six months, the ETS must be replaced by a permanent OSHA standard. There is a formal process in place for creating permanent standards that includes a notice-and-comment period.
When will the emergency temporary standard be issued?
We don’t know. The only official word is that it could take “weeks.”
We also expect that once it’s released it is not going to be enforced immediately. There might be a 75 or 90-day timeline for implementation before OSHA starts enforcing the rule.
Considering we’re already in October, we’re probably looking at next year before the mandate goes into effect. However, the more you can encourage employees to get vaccinated now, the easier it will be for you later on.
Is the mandate going to be challenged in court?
Yes, we know there will be legal challenges. Arizona has already filed a lawsuit against the Biden administration challenging the vaccine and testing mandate. The attorneys general of another 20 or so states have said they’re going to challenge it too.
Courts will have to determine whether COVID is a “grave danger” to employees since that is what gives OSHA the authority to issue an emergency temporary standard.
Even if there is a successful challenge, that result might not come about until after the rule has gone into effect. That means covered employers should prepare now.
How will the 100-employee threshold be counted?
We won’t know exactly how this will be defined. OSHA officials have made public statements that the 100-employee count applies to an entire company, rather than individual worksites or locations.
Will part-time or temporary employees be counted towards that threshold? We don’t know yet, but employers should assume they do.
What about employers whose employee count has fluctuated above and below 100?
The ETS probably won’t be written in a way that allows employer to go and fire employees to get below the threshold and avoid complying. We’ll have to wait to see what it says, but our recommendation is that if you’ve had more than 100 employees at any time in the past year, you should assume you will be covered and begin to prepare.
What is the mandate for federal employees and contractors?
President Biden signed an executive order on Sept. 9 that requires most federal workers to get the COVID vaccine. This applies to the executive branch only. The judicial and legislative branched aren’t covered under the executive order. Since federal agencies fall under the executive branch, agency employees will have to comply.
The executive order requires federal workers, even those working remotely, to be fully vaccinated by Nov. 22. They no longer have an option to get tested weekly instead of providing proof of vaccination.
Most federal contractors and subcontractors will have to be vaccinated too, and the deadline for them is Dec. 8. The Safer Federal Workforce Taskforce has released additional details and obligations, and government contractors and subcontractor should review this guidance.
What is the mandate for healthcare workers?
The Centers for Medicare and Medicaid Services (CMS) is developing an interim rule that will be released sometime in October that will clarify the mandate.
Employees at all healthcare facilities that participate in Medicare or Medicaid programs, including hospitals, clinics, and other health care offices, will have to be vaccinated. Nursing home staff, hospital staff, clinical staff, and even employees not involved in direct patient care will have to get vaccinated.
In effect, this means most healthcare workers will be required to be vaccinated.
What is the paid time off requirement for employers with 100+ employees?
The mandate also requires employers with 100 or more employees to provide paid time off to employees to get vaccinated and recover from the vaccine.
We need clarification on this from OSHA. However, officials have implied that employers won’t have to offer additional PTO for this and can instead require employees to use PTO from the plan they currently have.
We don’t know how this will be handled for employers who don’t offer PTO, or in cases where an employee has exhausted PTO under their current plan.
What are the penalties for violating the mandate?
Employers who don’t comply with the vaccine and testing mandate or paid time off requirement will face fines of up to $14,000 per violation. We don’t know yet how the penalties will work—if it’s one penalty per worksite that’s in violation, for example—and need more guidance from the ETS.
While we wait for the ETS to be released, what can employers do now to get ready for it?
We strongly recommend all employers who might be covered by the mandate start preparing now.
There are two routes employers can take, and deciding which of these works best for your organization is a good place to start.
The first route is implementing a mandatory vaccination policy with no weekly testing option. The only exemptions to your mandatory policy would be those required under the law for qualified medical reasons or sincerely held religious beliefs.
The second route is to allow employees the option of presenting a negative weekly test rather than get vaccinated.
We understand some employers are reluctant to put a mandatory vaccine policy in place. However, from an administrative and logistical perspective, the weekly testing option could end up being more of a burden.
Let’s talk about what these two options look like, and what you would have to do to administer each.
How would employers administer weekly testing?
If you offer the option for employees to provide weekly test results, you need to establish a process for collecting and tracking this information. What documentation will you ask for, and who will employees submit this information to each week?
Test results are considered confidential medical information, so you also need to limit who has access to this information. These records, like other medical information, must be stored separately from an employee’s regular personnel file.
If someone shows up one week without a test, you’ll have to send that employee home and take disciplinary action. You should decide ahead of time how you will deal with violations of this policy and develop a corrective action plan.
Enforcing your policy uniformly will be really important. You can’t let it slide if an employee doesn’t provide a test one day.
Who will pay for testing?
We don’t know who will be responsible for paying for the tests, whether it will be the employer or employee. Some states require employers to pay when an employee has to get a medical test for work. Will COVID tests fall under this? We don’t know.
We also don’t know if employers will have to pay non-exempt employees for the time spent getting the tests. These are both questions we expect the ETS to address.
How do you decide whether you should offer a testing option or make vaccination mandatory for all employees?
You might want to start with a survey to get a sense of where you’re at and what percentage of employees are already vaccinated. If most are already vaccinated, the logistics of collecting and documenting weekly tests is probably manageable.
The greater the number of employees you have who are not vaccinated, the larger a burden it will be for you to offer testing.
Another question to consider is accessibility to testing. Is getting tested every week something that employees will reasonably be able to do?
What types of tests will employees be allowed to submit?
Again, we are waiting for guidance on this from OSHA. Will the ETS allow both PCR and rapid antigen tests? What about at-home tests?
When President Biden announced his plan for expanded vaccine mandates, he also said that major retailers like Walmart and Amazon are going to offer these tests at cost to expand access to testing.
If the ETS allows employees to submit results from at-home tests, then employers need to decide how they want to approach that. Do you want to buy the kits yourself and perform testing at work, or do you trust your employees to do it at home and provide the results to you?
If you’re a covered employee, you should start thinking about some of these issues and how you want to handle them.
How would employers implement a mandatory vaccine policy?
Employers who implement a mandatory vaccine with no testing opt out will need to establish a process for collecting proof of vaccination. The ETS may be specific about what proof of vaccination is required. The good thing is that you only have to collect these documents once and then you’re done.
As with test results, proof of vaccination is considered confidential medical information and must be stored separately from an employee’s regular personnel file.
What accommodations are required by law?
To be in compliance with the Americans with Disabilities Act and Title VII of the Civil Rights Act, which prohibits discrimination against protected groups, employers who implement a mandatory vaccination policy must make accommodations to employees for two reasons:
- If an employee has a disability or medical condition that prevents them from getting the vaccine.
- If the employee has sincerely held religious beliefs that are inconsistent with vaccination
The law requires that you communicate to employees that they can request accommodation for these reasons. You will also need to create a process for employees to request accommodation and share that process with employees too.
How does the accommodations process work?
Most employers create an accommodation request form that an employee can submit to the HR department or other designated representative.
If the request is for medical reasons, the employee has to get documentation from a medical provider that 1) shares the medical reason or impairment that prevents employee from getting the vaccine and 2) states for how long employee needs this accommodation.
If the request is for religious reasons, the employee will have to explain why their religious beliefs are inconsistent with getting a vaccine. You are also allowed to ask the employee for supporting documentation, such as a statement from a religious leader, though you may not want to do this unless you believe the employee’s request is not legitimate.
Once the employee requests an accommodation, the employer should review the case to see if the request is legitimate and is actually covered by ADA or Title VII.
If it’s an ADA accommodation, note that not all medical conditions are considered disabilities under the ADA.
If it’s a request for religious reasons, we recommend you assume the religious beliefs and practices described by the employee are real and sincere, unless you have evidence otherwise.
Then, if you do grant the employee an exemption, you should require the employee to submit weekly test results and wear a mask while in the workplace to keep others safe.
The law does say employers don’t need to grant the accommodation if it is an undue hardship. However, we strongly discourage employers from denying an accommodation for this reason as it’s extremely difficult to prove. If the employee can still do their job while wearing a mask and getting tested weekly then an employer can’t really make the case that allowing the exemption is an undue hardship.
The accommodation process can be overwhelming for employers. One benefit of working with an HR outsourcing company—and a benefit that Anthros clients enjoy—is that you have support in responding to and evaluating accommodation requests. What we do for our clients is give them the necessary forms and take the lead in evaluating requests on a case-by-case basis.
Is there anything else employers should be doing right now?
To summarize, the first thing an employer should do is decide whether they want to make vaccination mandatory, or allow weekly testing. Then they should start sketching out their processes and getting them in writing.
Another thing employers can do now is start working on employee communications. Your success in implementing your vaccine and testing policies, as with all policies, will really hinge upon how well you communicate it to employees.
Any employer who knows or thinks it’s a possibility they will be covered by the mandate should communicate with employees now. There is no reason to delay.
It is completely okay if you have not finalized your policies yet. It’s okay to tell employees you don’t know the exact details yet. However, it’s important to let employees know now that the emergency temporary standard is coming, and that as a business you will have to comply.
This starts to create a sense of urgency. You want to get people vaccinated now to make it easier for you later on.
When communicating to employees, provide as much information as you can. Tell employees exactly where they can get vaccinated. If you can give employees paid time off to get vaccinated, that helps too.
Communicating frequently with your employees and being transparent is what builds trust. You are going to need that for your policy to be successful.
As we learn more in the coming weeks, our team will provide more information for you on the Anthros blog.