To Require the Vaccine or Not…

IThe Biden Administration’s Emergency Temporary Standard (ETS) to the DOL and OSHA gives you more room to make that move. The new ETS requires employers that qualify to either prove full vaccination status for all of their employees or be able to produce a negative COVID test weekly, for those employees that are unvaccinated.

Who is impacted?

·      Employers with 100 or more employees

·      Some Employers who have Federal Government Contracts

·      Employers who want to implement a vaccine mandate

If you do not have 100 employees and you have been considering requiring the vaccine, this order gives you more legal ground to stand on. If the Federal Government requires it, then a court case against an employer who also requires it would be an uphill battle. You have a responsibility to provide a safe work environment, it can be argued that mask and vaccine mandates fall within this requirement. 

If you do have 100 or more employees or you have certain kinds of Federal Contracts, it’s time to get moving on this requirement. 

What we know today:

·      For now, this is a done deal. Using the ETS, President Biden can implement this kind of mandate. I assume this will go through the courts, but history is on the side of the vaccine and the Federal Government.

·      Employers who have to require proof of full vaccination status will also need to keep and protect those medical records. 

·      Employment law allows for exemptions for vaccination requirements under certain circumstances. (Deeply held religious beliefs, disability or pregnancy) Having COVID anti-bodies from getting the disease earlier does not exempt employees from this order.

·      OSHA will be the governing body overseeing the ETS.

·      Employers must pay employees for the time it takes to get tested and the cost of the test. This includes drive time and testing time. Overtime rules will apply for testing time. (Per the FLSA)

What we do not know today:

·      Timing: OSHA has not released a requirement start date yet, but is suggesting that employers “make efforts to get their staff vaccinated.” They expect the mandate to be in effect for at least 6 months. 

·      Reporting procedures: It is unknown at this time, how you will report your status.

·      Testing requirements: Will all tests qualify? Even at home tests? Does the test need to be administered by a health care professional? Will they report the findings to the government? Or to the Employer? Or the employee?

Legal issues and operational challenges of a vaccine mandate:

·      Communicating clearly to employees about the requirements and expectations

·      Testing strategies and implementation

·      Record collection and retention

·      Accommodation requirements, documentation, and confidential record keeping 

·      Wage and hours implications

·      Employee confidentiality and privacy issues

·      Additional costs: 

• Loss of productivity for time spent going and getting the tests

• Additional PTO for vaccine recovery (included in the order)

• Possible overtime costs for employees to get tested

• The cost of the test

• Additional man-hours spent managing the program

There are many articles out there discussing “sincerely held religious beliefs” and how to uncover if those beliefs are “sincere.” Our recommendation is, don’t waste your time with that. If an employee files for an exemption based on religion, you should not question them in any way, they get it. It’s not worth the hassle, and it’s so subjective you could find yourself in a very sticky bind. The bad PR alone, from being sued for discrimination based on religion would hurt more than sending this person to weekly testing.

If you have any questions, need procedures or documentation related to this order, please feel free to reach out to Tami@unicycle.consulting

*Now that we have published this blog post, we will receive clarification from the Department of Labor (that’s just how these things go) we will update this article as new information comes out.