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What's Next for Workplace Vaccine Requirements?

published9 months ago
5 min read

On September 9, the Biden administration announced new vaccine mandates that will impact over 80 million workers, or close to two-thirds of the U.S. workforce. OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is vaccinated or require workers to be tested each week. Employers will also be required to provide paid time off for workers to receive vaccinations.

OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. Although the timing and details aren’t entirely clear yet, we do know that employers who fail to comply with the standard could face penalties of up to $14,000 per violation. With this in mind, employers should start preparing now so that the transition is seamless and non-disruptive for their business and their people.

However, few details about the ETS have been provided at this point, leaving many organizations with questions about how to put the right compliance measures in place. Employers also have to consider how the rollout of booster shots could impact their programs in the future. Let’s look at some important questions companies are asking about the upcoming mandates, how vaccine boosters might factor into these plans, and what businesses can do now to prepare.

Key questions about the mandate

While a few questions have already been addressed by OSHA, companies will have to wait until the ETS is released to have a complete understanding of how they’ll need to adapt. Some of the biggest questions include:

  • Which companies will be affected by the mandate? All employers covered by the OSH Act and with 100 or more employees will need to comply. Law firm Fisher Phillips notes that many office-based employers do not even realize they fall under this statute, so businesses would be wise to look into this sooner rather than later. Employees in five industries will especially feel the effects of the new vaccine mandate — management, utilities, information, finance and insurance, and administration and waste management services.
  • What is the timing for the ETS to be issued and to take effect? Although no specific date has been provided, various statements have indicated it will be soon — most likely in a few weeks. Once issued, the ETS will have immediate effect in the 29 states where federal OSHA has jurisdiction. In all other states, agencies that oversee workplace safety will have to adopt the ETS or “just-as-effective measures” within 15 to 30 days. OSHA will likely start enforcing the standard within 75 days.
  • Will the requirements apply to remote workers? OSHA officials have confirmed that remote workers who do not come in contact with others would not be covered by the emergency rule, provided they don’t go into the workplace. However, it’s not entirely clear how strictly this will be enforced. For example, will remote workers have to be vaccinated or tested if they’re picking up a piece of equipment at the office? What about if they attend an off-site event with colleagues?
  • How will the 100-employee threshold be counted? OSHA has confirmed that this will be counted on a company-wide basis, not on a per location basis. However, smaller employers that contract their services for larger companies may find it necessary to impose a vaccine mandate anyway. That’s because larger companies can refuse to allow contractors on-site if they’re not vaccinated, a policy that’s already been put in place at companies like Capital One, Johnson & Johnson, and Northwestern Mutual.
  • Who will pay for testing? OSHA has said the ETA will provide more information about who will be responsible for testing costs. Insurance may cover the costs at some companies, but some states have laws that require employers to pay for mandatory medical tests. Businesses will also need to offer paid time off for testing under the new standard. However, if a business has a company-wide vaccine mandate, it’s unclear whether employees who request exemptions will be required to pay for their own testing.

How should employers prepare for the rollout of booster shots?

The availability of booster shots adds another layer of complexity as employers navigate what lies ahead. On August 18, the U.S. Department of Health and Human Services announced that people who received the Pfizer and Moderna vaccines are advised to get a booster shot to improve their immunity to COVID-19. Health officials anticipate that people who received the Johnson & Johnson vaccine will also need a booster, although the timing on this isn’t clear.

However, recent developments indicate that employers will likely have more time to prepare for this. That’s because as of right now, boosters are only being recommended for people 65 and older and those at high risk. In fact, just last week the FDA said that booster doses of Pfizer's COVID-19 vaccine may not be needed. And on Friday, the FDA rejected an application to approve booster doses of Pfizer's vaccines for everyone 16 and older, expressing doubts about the safety and efficacy due to the current lack of data.

Despite the current state of uncertainty, companies would be wise to think about how booster shot mandates or recommendations might impact them in the future. Many experts predict that OSHA will eventually require workers to receive a booster in order to count as vaccinated. Although it may be burdensome on employees, from a workplace safety perspective it makes sense for companies to consider requiring boosters for their staff, if and when they become available to the broader population.

What companies can do right now to prepare for the ETS

There are many lingering questions about the vaccine mandates, and the timing on the rollout of booster shots remains unclear. However, there are steps companies can take right now to prepare for the ETS. Law firm Fisher Phillips has outlined a helpful 5-step plan for employers, which I’ve summarized below:

  1. Adopt procedures for determining employees’ vaccination status
    Companies will likely be required to collect proof of vaccination, and they’ll need to do so in a way that aligns with state laws regarding confidentiality and privacy of medical records.
  2. Determine if you will mandate the vaccine or allow weekly testing
    There are pros and cons to both approaches. While allowing for testing offers workers more freedom, employers may find that collecting and tracking weekly test results becomes burdensome.
  3. Decide how you will handle accommodation requests
    Not only do organizations need to develop a clear accommodation policy for the vaccine, they’ll also need to prepare for employees to request an exemption from the weekly testing requirement.
  4. Have a plan for collecting and tracking test results
    Companies will need to develop a way to manage this process, and as they await further guidance from OSHA, they could begin reviewing applicable state and local employment laws to determine who will pay for testing.
  5. Prepare for OSHA complaints and inspections
    In addition to the requirements of the new ETS, OSHA may ask for your COVID-19 response plan to ensure it meets state or local health orders.

It continues to be a challenging time for employers and their people, but companies that do their planning and due diligence now will be setting themselves up for an easier transition to the next phase of combatting the COVID-19 pandemic. It’s certainly not going to be easy, but our collective efforts are critical for Biden’s “Path Out of the Pandemic” action plan to be a success.