UPDATED 12/20/2021, after the Sixth Circuit lifted the stay of OSHA COVID-19 ETS.
On Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit's stay that had prevented the Occupational Safety and Health Administration's (OSHA) Emergency Temporary Standard (ETS).
ETS in Action Again
The ETS, requiring employers with 100+ employees to enforce vaccination or weekly testing, is now back in action. At this time it is unclear when the decision will be made or if the Supreme Court will hear the case.
On September 9th, President Biden introduced a six-part “Path Out of the Pandemic” plan, with new steps designed to combat COVID-19 and its variants. Within the six-pronged strategy, the introduction of a sweeping vaccine mandate — that affects over 100 million American workers — has received an overwhelming amount of both positive and negative response. The mandate is imposed by the Occupational Safety and Health Administration (OSHA), as well as the Department of Labor (DOL).
On November 4th, 2021, OSHA officially issued a Vaccination and Testing Emergency Temporary Standard (ETS), which established binding requirements for the mandate above, in order to protect unvaccinated employees of large employers (100+ employees) from the risk of contracting COVID-19 in the workplace.
Regardless of your organization’s stance on the mandate, here’s everything HR needs to know, and how to prepare.
Details on the New Vaccine Mandate
Does the vaccination mandate affect my organization?
HR departments all over may be wondering if or how the new vaccination mandate will impact their own organizations. The new vaccine mandate and OSHA’s Emergency Temporary Standard (ETS), if approved:
Requires all employers with more than 100 employees to ensure their workers are vaccinated OR tested weekly starting January 4th, 2022, before coming to work
Requires vaccinations for all federal workers and for government contractors
Requires vaccinations for healthcare workers at Medicare & Medicaid participating hospitals and healthcare settings
Calls on large entertainment venues to require proof of vaccination or testing for entry
Requires all employers to provide Paid Time Off (PTO) to get vaccinated
Requires all unvaccinated employees to be masked by the deadline provided below
OSHA officially issued the Emergency Temporary Standard (ETS) on November 4th, 2021, “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” If after the lottery, the selected Federal Circuit approves OSHA's ETS, it will go into effect officially.
The ETS preempts state and local laws, and also serves as a proposed rule that OSHA may revise or update.
When does the mandate officially go into effect?
The ETS is effective immediately upon publication in the Federal Register, and here are the deadlines businesses should be aware of:
By December 5th, 2021, all requirements of the mandate other than testing for employees are effective (Providing PTO for vaccination, masking for unvaccinated workers, etc.)
All covered employers must ensure that their workers have received the necessary shots to be fully vaccinated -- 2 doses of Pfizer or Moderna, or one dose of Johnson & Johnson -- by January 4th, 2022. They are considered fully vaccinated 2 weeks after the 2nd dose of Pfizer or Moderna, or 2 weeks after the single dose of Johnson & Johnson.
After January 4th, 2022, covered employers must ensure that any employees who are not fully vaccinated begin producing verified negative COVID-19 tests to the employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed by a licensed health care provider.
Health care workers at facilities participating in Medicare or Medicaid must receive the necessary shots to be fully vaccinated -- 2 doses of Pfizer or Moderna, or one dose of Johnson & Johnson -- by January 4th, 2022. The rule applies to employees regardless of whether their positions are clinical or non-clinical.
Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose by January 4th, 2022.
*Rules are subject to change at any time.
Who is exempt from the federal vaccination mandate?
Team members may request an exception from vaccination requirements (if applicable) if the vaccine is medically contraindicated for them or medical necessity requires a delay in vaccination. Employees also may be legally entitled to a reasonable accommodation if they cannot be vaccinated and/or wear a face covering (as otherwise required by this policy) because of a disability, or if the provisions in this policy for vaccination, and/or testing for COVID-19, and/or wearing a face covering conflict with a sincerely held religious belief, practice, or observance.
What happens if organizations fail to comply?
If organizations that fit the underlined criteria fail to comply with the mandate, they could be fined nearly $14,000 per violation. Federal workers could also face termination if they refuse vaccination (without an exemption). It is not yet clear how compliance will be enforced.
How do I track and manage vaccine records or test results?
Even though the mandate is currently stayed, businesses should maintain a record and a roster of each employee’s vaccination status if they decide to track.
If OSHA's ETS is implemented, this information is subject to legal requirements for confidentiality of medical information, and must be preserved while the Emergency Temporary Standard is in effect. Employers have the flexibility to structure their tracking systems to fit within current systems, including HR software.
For test result documentation, employees who are not fully vaccinated and who report at least once every 7 days to a workplace where other individuals are present are:
Required to test for COVID-19 at least once every 7 days;
Required to provide documentation of the most recent test result to the employer no later than the 7th day following the date of the last result
As such, HR should have a plan for digitally tracking and managing vaccine documents and records, in order to stay compliant with OSHA guidance. Having a modern HR software like GoCo can be a game changer.
GoCo just announced a brand new COVID Compliance feature, that will enable HR teams to:
Track proof-of-vaccination & weekly test results
Save time with employee self-service status updates
Run vaccine data reports to ensure organization compliance
Customize COVID-19 tracking workflows with advanced configuration options
Manage all of their other HR tasks within the same platform (i.e. onboarding, benefits administration, payroll, and beyond)
HR can require documentation within the HRIS and add custom settings for easy reporting. Employees simply need to upload their vaccination records or test results to save it to their profile, and HR will be notified to review them. You can also set-up custom permissions depending on who should be given access.
Learn more about COVID Compliance Tracking in GoCo. Sign up for updates on GoCo's new feature for tracking vaccines and testing.
HR’s Role in Enforcing the Vaccination & Testing Mandate
Where does HR come in when it comes to enforcing the mandate? Should this be an administrative task for a different department? No matter where your employer falls on the issue, HR leaders might be expected to:
Monitor employee sentiment and feedback
Handle resistance to regulations
Keep up to date around new legal concerns
Identify the best methods for tracking vaccines or managing weekly tests
Communicating updates to employees in a timely manner
Because of these expectations, it’s important that HR stays well-versed on the issue. Here are some additional questions HR may be asking, should OSHA’s ETS go into effect.
Who will pay for weekly COVID-19 tests?
The OSHA ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing might be required by additional laws, regulations, or collective bargaining agreements or other collective agreements. Additionally, employers may voluntarily assume the costs of testing should they want to.
Employers can consider a wide range of approaches, from completely covering routine testing costs to having unvaccinated workers pay for their own tests. There is no single recommended method, but employers should consider:
The estimated cost of the company picking up the tab for weekly tests
The employee response and potential backlash if they are personally required to pay the price of weekly testing
What is considered acceptable vaccination documentation?
According to the ETS, employers must require employees to provide an acceptable proof of vaccination status, including whether they are fully or partially vaccinated. Acceptable proof of vaccination status includes:
The record of immunization from a health care provider or pharmacy
A copy of the COVID-19 vaccination record card
A copy of medical records documenting the vaccination
A copy of immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
A signed and dated employee attestation may be acceptable in instances when the employee can’t produce proof of vaccination. With the attestation option, there are no technological barriers to the provision for proof of vaccination status.
What kind of tests are authorized?
According to the ETS, COVID-19 tests that are cleared, approved, or authorized by the FDA to detect current infection with the SARS-CoV-2 virus satisfy the ETS. FDA-cleared, approved, or authorized molecular diagnostic tests and antigen tests are permitted under the ETS when used as authorized by the FDA with a Clinical Laboratory Improvement Amendments of 1988 certification when appropriate.
What is considered “fully vaccinated”?
According to the ETS, full vaccination status is 2 weeks after the full required vaccine course for each respective vaccine is completed.
What determines the 100+ employee threshold?
The OSHA standard (should it go into effect) generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction. Within these industries, employers that have 100+ employees firm- or corporate-wide, are covered. If you had 100 employees at anytime that this guidance is in effect, it applies to you.
Does the OSHA Emergency Temporary Standard apply to remote employees?
Updated guidance states that employees who report at least once every 7 days to a workplace where other individuals, like coworkers or customers, are present:
Must be tested for COVID-19 at least once every 7 days; and
Must provide documentation of the most recent COVID-19 test result to the employer no later than the 7th day following the date on which the employee last provided a test result.
Employees who do not report during a period of 7 or more days to a workplace where other individuals, like coworkers or customers, are present (i.e. remote/teleworking):
Must be tested for COVID-19 within 7 days prior to returning to the workplace; and
Must provide documentation of that test result to the employer upon return to the workplace.
How do I create an official written policy?
OSHA has provided 2 types of vaccination policy templates to assist with creating a policy for your organization -- one for mandatory vaccination as well as one for optional vaccination.
Find the templates here.
How do I decide between requiring vaccinations and weekly tests?
At present, there is no specific guidance around which route is “better” for your organization in the “Vax-Or-Test” order (if your organization is affected by the mandate). However, here are a handful of key considerations before you decide:
Monitor developments and official rulings. First and foremost, make sure you understand the rules and regulations, as well as the detailed OSHA ETS (stay has been lifted). New guidance around vaccination vs. testing may affect which route to take for your business.
Understand the risks and benefits that come with each choice. If you decide to require vaccinations, expect to create a plan for announcing the mandate to employees, a mandatory vaccination policy, a method for responding to resistance, and a guide to addressing exemption requests based on disability or religion. If you decide to require weekly tests, expect to research different types of COVID-19 tests and understand the average turnaround times for results.
Estimate and recognize the costs involved. Create a budget ahead of time that includes the cost of providing PTO for employees to get the vaccine, the cost of paying for weekly tests, and the cost of time off to get weekly tests. Stay up-to-date on business loans or credits you can apply for in regards to time-off for testing or vaccination.
Evaluate options for tracking vaccinations or managing weekly test results. HR must create a plan for record keeping, new company-wide policies, tracking exemptions and more.
Prepare for inspections. Should the mandate be implemented, HR should be aware that OSHA inspections may be conducted without notice.
How should I handle employee resistance?
If employees raise concerns about the vaccination-or-testing mandate, HR managers should be prepared to:
Help employees understand the “why” behind the policy. Come with facts and OSHA guidelines to explain how these policies will help ensure the continued safety of workers everywhere.
Listen & be empathetic. Especially in instances of resistance, your employees should know that you value differences in opinion as well as their concerns. Listen to them, while offering up details and facts on why you must take these measures, and how it ties in with OSHA compliance.
Identify solutions for supporting employees that cannot be vaccinated for approved reasons. This may mean exploring work from home options, or getting weekly testing. Additional education and information may also help vaccine-shy employees, so HR departments can also consider consulting or inviting medical professionals in for guidance.
How do I evaluate religious exemption requests?
Religious exemptions to the vaccination mandate can get complicated quickly. Individualized religious beliefs and interpretations vary greatly, so you may be wondering how to validate religious exemption requests.
If you’ve received a request for exemption on religious grounds, take these steps to evaluate:
Ask them to provide a written narrative explaining the religious basis for their exemption request.
Review the narrative and evaluate. Does the narrative fully support the religious request? Does the narrative lack support, or is it focused on other fears or political stances?
Reach out to an employment lawyer. If you are still uncertain of whether an employee is entitled to exemption on religious grounds, the safest move is to involve a professional employment lawyer to determine next steps.
Remember to be sensitive throughout the process, as religion can be incredibly personal. This means reading every narrative carefully, as well as keeping the process as confidential as possible for employee safety purposes. Read more here on how HR can handle accommodation requests for the COVID-19 vaccine.
Under what conditions do you consider mandating the vaccine even if you’re not required?
Even if your organization is not required to enforce vaccinations or weekly tests by the potential ETS, you might choose to require them anyways. Conditions in which you may consider mandating the vaccine include: work that requires in-person interaction in confined spaces or areas of high transmission, work that involves at-risk populations, work that involves large groups of people, and more.
This decision should be well-researched, and employers must understand the legal consequences. Here are a few considerations before implementing a mandatory vaccination policy:
Implementing a policy like this can lead to employee resignations or terminations. Be prepared for the consequences of implementation.
State or local laws might affect whether or not you can implement a mandatory vaccination policy. Review your local guidelines and do your due diligence as the laws change frequently.
There are exceptions to implementing a policy, just like there are for the Federal order. Exceptions around disabilities, pregnancy, and religion are required by law for organizations with 15 or more employees, so make sure you familiarize yourself with these beforehand.
Employees need ample time to prepare and to get compliant with your policies. Take note of this before setting deadlines.
Just because you’ve created a policy, does not mean that there are no risks. Speak with an attorney before making your decision.
For a complete guide to mandating vaccines in your organization, view our guide here.
As the lottery results are revealed, we will provide frequent updates for HR. In the meantime, HR and employers should focus on preparing their workforce for upcoming deadlines, gauging employee sentiment around it, and considering any legal implications it brings.
GoCo is dedicated to supporting HR in grappling with ever-changing federal regulations and employee concerns. To learn more about how GoCo can help you track vaccinations, request a free demo today, or sign up for notifications about our new COVID Compliance Tracking feature below.