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Everything HR needs to know about President Biden’s new vaccine mandates & OSHA’s Emergency Temporary Standard
UPDATED 12/20/2021, after the Sixth Circuit lifted the stay of OSHA COVID-19 ETS.
Latest Updates:
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).
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.
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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.
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:
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.
The ETS is effective immediately upon publication in the Federal Register, and here are the deadlines businesses should be aware of:
*Rules are subject to change at any time.
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.
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.
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:
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:
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.
Sign up for updates on GoCo’s new feature for tracking vaccines and testing.
Learn more about COVID Compliance Tracking in GoCo
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:
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.
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:
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:
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.
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.
According to the ETS, full vaccination status is 2 weeks after the full required vaccine course for each respective vaccine is completed.
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.
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:
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):
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.
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:
If employees raise concerns about the vaccination-or-testing mandate, HR managers should be prepared to:
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:
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.
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:
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.
Sign up for updates on GoCo’s new feature for tracking vaccines and testing.
Learn more about COVID Compliance Tracking in GoCo