An estimated 80 million employees in the United States will be affected by a forthcoming rule that will require them to get vaccinated or submit to weekly COVID-19 tests.
Here’s what we know so far and how you can begin to prepare your organization for the new workplace requirements.
What we know
A forthcoming federal safety regulation will require all employers with 100 or more employees to require their workers to be vaccinated or require unvaccinated employees to submit to weekly COVID-19 tests and produce a negative test before coming to work.
Employers that do not abide by the rule, which the Occupational Safety and Health Administration (OSHA) will issue, will likely face penalties for non-compliance. A “serious” violation could result in a fine of $13,653, while “willful or repeated” violations could cost $136,532.
The rule will also require businesses to offer employees paid time off to get vaccinated and recover from possible side effects of vaccination.
What we don’t know
President Biden first announced the plan on September 9, but OSHA has yet to issue an Emergency Temporary Standard (ETS), which is needed to carry out the mandate. The ETS is expected to arrive in the coming weeks, but it’s not clear exactly when.
Notably, legal challenges by employers and states are expected, with attorney generals in two dozen states calling the mandate “illegal” and threatening legal action.
It’s also not clear how employees will be counted under the rule (full-time employees versus part-time and fully remote workers) or who is responsible for paying for weekly testing for employees who choose to remain unvaccinated.
Also unknown is who will enforce the rule. With just one compliance officer per 70,000 American workers, OSHA is unable to effectively enforce mandates. Instead, President Biden is calling upon private employers to do so on their own.
What you should do to prepare
Legal experts are encouraging employers to begin preparing for the vaccine mandate sooner, rather than later.
Here are some steps to consider:
Create or adjust your vaccine policy to account for new rules
All employers with 100 or more employees should anticipate the arrival of OSHA’s Emergency Temporary Standard (ETS) within the coming weeks. Once published, the rule will take effect almost immediately.
Employers should prepare and modify their COVID-19 vaccine policies to align with the impending rule. Employers do not need to wait for the ETS to impose vaccine mandates, as long as they make exceptions for legitimate, documented disabilities and sincerely held religious beliefs.
Inform your employees of the approaching mandate and inform them of new updates to your organization’s COVID-19 policy, including:
- A requirement that all employees become fully vaccinated by a given date.
- The availability of paid time off for vaccination-related absences.
- An option for weekly periodic testing instead of vaccination if a request for a reasonable accommodation exception is approved (or telecommuting when appropriate is optional).
- Consequences of failing to comply with your policy.
Establish a procedure for determining employee’s vaccination status
Asking employees if they are vaccinated is generally permissible, according to the Equal Employment Opportunity Commission. That’s because inquiring about vaccination status is unlikely to illicit information about potential medical conditions that would violate ADA laws.
Importantly, the EEOC encourages employers to warn employees to refrain from providing additional medical information.
Once vaccination information is received, employers must establish a process to safely and confidentially store each employee’s medical information.
Prepare for mandatory testing
Unvaccinated employees will have to undergo weekly testing to comply with the ETS. Employers may be required to absorb the cost of COVID-19 testing, so you should prepare for the potential costs of testing and the logistics of acquiring and distributing tests.
Employers must consider if employees will be tested on-site or through a third party, and consider how to collect and store test results confidentially.
Prepare how to handle accommodation requests
Employers must prepare to navigate accommodation requests, ranging from claims of religious exemption to disability. Employers should anticipate an influx of these requests after the ETS has been announced and determine a procedure for collecting and reviewing such requests.
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Need HR help? Contact us today. The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.
ABOUT THE AUTHOR
Lia Tabackman is a freelance journalist, copywriter, and social media strategist based in Richmond, Virginia. Her writing has appeared in the Washington Post, CBS 6 News, the Los Angeles Times, and Arlington Magazine, among others. She writes weekly nonprofit-specific content for 501c.com.