UPDATE: As of January 13, 2022, the U.S. Supreme Court ruled to block the vaccine mandate imposed by OSHA. Please see our most recent post dated January 20 for an update.
In November, we distributed a brief survey to learn how employers are preparing for the new emergency temporary standard (“ETS”) released by OSHA related to COVID-19 vaccination and testing of employees. As of January 12, 202 the ETS stands and nearly all provisions have gone into effect. Whether enforcement continues is up to the Supreme Court, which is expected to issue a ruling any day.
As of Monday, January 10, businesses with 100+ employees were required to have a database of their workers’ vaccination status, implement a company-wide vaccine policy, provide paid leave to workers getting the vaccine, and require unvaccinated employees to wear a mask. On February 9, they will be required to regularly test all unvaccinated employees.
Below, we provide a comprehensive checklist for employers, and HR teams as they prepare to comply with the standard.
RECENT EVENTS
The ETS requires employers to create and enforce a mandatory vaccination policy. As an employer, you have the option to mandate vaccination for all or a portion of your employee population; you may also allow employees to opt out of vaccination. Employees that remain unvaccinated – either because (a) they are not in one of the required employee groups or (b) they are exempt based on a medical or religious accommodation – must undergo weekly COVID-19 testing and wear a face covering at nearly all times.
The ETS was originally challenged and blocked through the court system by the U.S. Court of Appeals for the 5th Circuit. On December 17, 2021, the U.S. Court of Appeals for the 6th Circuit dissolved the 5th Circuit’s stay, moving the ETS forward. A broad coalition of trade groups filed petition to the U.S. Supreme Court requesting a stay pending the Court’s review. The Court heard oral arguments on January 7 but has not yet ruled. As of January 12, employers should move forward with implementation.
Businesses have expressed concern that employees will quit if forced to vaccinate, thus worsening existing labor shortages and supply chain issues in some industries. Other concerns are that the administrative burden will be high and HR and Safety teams are not equipped and staffed to handle the volume of new work in the given timeline; that there will be unplanned expenses to businesses as they are required to provide employees with paid time-off, new system investments for tracking purposes, scheduling challenges, and more. However, as it stands, as an employer you are now required to develop a compliant policy and have until February 9 to begin employee COVID testing programs – failure to do so could result in citations for noncompliance amounting up to $14,000.
OTHER MANDATES
The OSHA ETS is not to be confused with two other mandates under discussion, CMS’ vaccination mandate on healthcare providers, and the mandate on federal employees, contractors and subcontractors.
IMPACTED PARTIES
Private business with 100+ employees.
The 100+ number is based on straight headcount (not full-time equivalent) regardless of hours worked, full-time/part-time status, remote or in-office status, etc. Temporary and seasonal employees are counted. Independent contractors and employees of staffing agencies are not counted. To determine if the ETS applies, employers should count all employees at all locations – company-wide. In the case of multi-employer job sites, each employer only counts its own employees.
If headcount reaches or exceeds 100 at any time during duration of the ETS, the standard will apply for the remainder of the duration, even if headcount later drops below 100. The ETS requires COVID-19 vaccination of all or a portion of the employee population.
EXEMPTIONS
Three groups of employees may be exempt from the vaccine requirement:
- Those for whom a vaccine is medically contraindicated,
- Those for whom medical necessity requires a delay in vaccination, or
- Those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
In addition, employees who work remotely 100% of the time and those that work outdoors or at a worksite where no other individuals are present are not subject to vaccination or testing requirements, but they must be counted by the employer when determining whether the business falls under the rule of the ETS.
MAIN REQUIREMENTS
As an employer, you must:
- Require all unvaccinated employees to wear face coverings effective immediately
- Collect and record every employee’s vaccination status immediately
- Maintain an employee roster with vaccination status immediately
- Maintain employee vaccination records immediately
- Require vaccination or weekly testing by February 9
- Provide unvaccinated employees with reasonable time off with pay, during the workday, to receive each vaccination dose. Employees may choose to get vaccinated during non-working time; if so, you are not required to pay them.
“Reasonable time off” is defined as 55 minutes up to four hours based on: (a) travel time of 15 minutes each way; (b) pre-shot wait time of 5 minutes; and (c) post-shot wait time of 20 minutes.
Requirements:
- Pay the employee their regular rate of pay.
- Not retaliate or take any action that could be considered punitive against employees for taking such time.
- Not require employees to use accrued paid leave to obtain the vaccine.
- Allow employees to use available PTO/sick/vacation time if the time to vaccinate exceeds four hours.
- Allow employees to use existing accrued sick leave or PTO if they experience vaccine side effects. Generally, OSHA presumes that, up to two days of leave will be sufficient.
- Not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from side effects.
- Provide paid leave if sufficient sick leave or PTO is not available.
- Not pay for the cost of testing unless state law or labor agreement dictate otherwise.
- Potentially pay for the time it takes employees to test each week. The DOL has yet to issue guidance on this. General interpretation and past related guidance based on the FLSA is that the employer would have to pay if the testing is necessary for specific employees to perform their jobs safely and effectively during the pandemic.
- Remove employees from the worksite that test positive and follow CDC guidelines or other outlined criteria before allowing return to work.
- Require positive employees to work remotely or in isolation if suitable work is available and if the employee is not too ill to work.
- Report work-related COVID-19 fatalities to OSHA within eight hours of learning about the fatalities, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.
STEPS & CONSIDERATIONS
1. Designate an ETS point person/committee/task force.
We recommend the task force include HR, Safety, Employee Relations, and Communications personnel. Task force members should be familiar with policy drafting and implementation, be able to respond to employee questions and manage concerns, be well-positioned to coordinate with management, have strong internal relationships, be familiar with labor union requirements, and have capacity to prioritize the planning, organizing and coordinating of work resulting from the ETS.ers should be familiar with policy drafting and implementation, be able to respond to employee questions and manage concerns, be well-positioned to coordinate with management, have strong internal relationships, be familiar with labor union requirements, and have capacity to prioritize the planning, organizing and coordinating of work resulting from the ETS.
Consider:
- Who will be responsible for staying abreast of ETS requirements and updates? How will they communicate changes to decision-makers and leaders?
- Who will manage employee communications?
- Who will draft the written policy surrounding vaccination and testing?
- Who will be involved in making final decisions regarding policy?
- Who will update senior management?
- Who will update middle management?
- Who will participate in data and documentation collection?
- Who will research vaccination options? Who will research testing options?
- Who will be responsible for developing budget, time and other operations projections?
2. Draft the Policy & Set Deadlines. Keep in mind that weekly testing must continue until two weeks after an employee’s final dose.
3. Adopt Procedures for Determining Employees’ Vaccination Status. You must maintain a roster of all employees and their vaccination status: fully vaccinated, partially vaccinated, not fully vaccinated due to medical or religious accommodation, or not fully vaccinated due to failure to provide proof of vaccination.
- How will you determine if employees are already vaccinated? Will people manage the process, or will you utilize a system? Will employees self-report?
- Does your current payroll or HRIS system allow you to collect this information? Does your internal communications team have a system that can be leveraged?
- Is your team familiar with how to collect and store/save medical information and understand areas of legal risk?
4. Determine method to collect and save proof of vaccination. The ETS requires you to keep proof of vaccination for all vaccinated employees on file. Acceptable forms of proof include:
- Record of immunization from health care provider or pharmacy
- Copy of vaccination card
- Copy of medical record of vaccination
- Copy of immunization records from public health, state or tribal immunization info system
- 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);
- Signed and dated employee statement
You may obtain a physical copy or may permit a digital copy, such as a scanned image, PDF, digital photograph, etc.
- What formats will you accept?
- How will you collect proof of vaccination?
- Where will you save this information? Does your current payroll or HRIS system allow you to collect this information? Does your internal communications team have a system that can be leveraged?
- Is your team familiar with how to collect and store/save medical information and understand areas of legal risk?
Inclusion considerations: allow submission from multiple channels – smart phone, paper copies, web; allow people access to scanners, copiers, printers, or any devices they might need to upload the info. Inclusion considerations: allow submission from multiple channels – smart phone, paper copies, web; allow people access to scanners, copiers, printers, or any devices they might need to upload the info.
5. Determine if you will implement a full mandate or a partial mandate. Will you require vaccination of all employees or only certain groups of employees, such as those that are customer-facing? How will you determine/justify the employee groups? What will you require of unvaccinated employees, beyond weekly testing and mask-wearing, if anything? Will you require to know vaccination status of visitors, contractors, vendors or customers?
6. Explore vaccination options. Explore pros and cons of the below options. Consider: the current vaccination status of the majority of your employee population; the differences in cost and time of onsite versus offsite; employee schedules and operational demands; employee access to resources/sites; employee work location; employee home location; employee transportation; employee morale and trust.
- Will you offer on-site vaccination to your employees? If so, will you utilize an existing on-site health clinic? Erect a temporary clinic? Host a mobile clinic? Host a clinic run by a local health department or pharmacy?
- Who will research onsite options, understand requirements, determine cost, etc.? Who will organize onsite options and project manage?
- How will you store and transport vaccine supplies? What staff training will be required? What PPE will be needed? Are there insurance/liability concerns?
- Will you direct employees to local/community options? Who will research options, compile a list and circulate? Will you assist employees in making appointments? Will you arrange transportation?
7. Determine if you will cover any cost associated with vaccination.
- Is your team familiar with the medical, disability, and religious exemptions? Do they understand the legal obligation of the employer and rights of employees? Does your team understand what retaliation could look like and how to prevent claims? Explore OSHA Whistleblower violation, ADA retaliation claim, Title VII claims.
- Do you have a process in place for employees to request an exemption? What are you permitted to require/request as part of the exemption process? When can you challenge a request and what is your authority?
- Is your team familiar with various reasonable accommodation options to make available to employees? What types of accommodations will you offer? Isolated work? Telework?
- What volume of accommodation options is feasible for your organization before it poses a significant hardship?
8. Develop a plan for accommodation requests. Your employees may request to be exempt from the vaccine mandate due to medical or religious reasons and may request a reasonable accommodation. You should be prepared to receive an increase in exemption requests if you have not mandated vaccination previously.
9. Develop a plan for non-compliance. What if an employee refuses to comply? Will you issue warnings, grace periods, etc.? Will you provide reminders?
10. Incentivize. Will you incentivize employees to get vaccinated? Will you provide: cash bonuses, gift cards, PTO, free food or small gifts, retailer discounts, etc.?
11. Explore testing options. Your unvaccinated employees will be required to undergo weekly testing, at a minimum. Explore pros and cons of the below options. Consider: the differences in cost and time of onsite versus offsite; employee schedules and operational demands; employee access to resources/sites; employee work location; employee home location; employee transportation; employee morale and trust.
- Will you offer on-site testing to your employees? If so, will you utilize an existing on-site health clinic? Erect a temporary clinic? Host a mobile clinic? Host a clinic run by a local health department or pharmacy?
- Who will research onsite options, understand requirements, determine cost, etc.? Who will organize onsite options and project manage?
- What staff training will be required? What PPE will be needed? Are there insurance/liability concerns?
- Will you direct employees to local/community options? Who will research options, compile a list and circulate? Will you assist employees in making appointments? Will you arrange transportation?
- Will you allow pooled testing? This is where samples taken from a group of employees are combined — if the test for the pool is negative, then everyone in the pool is deemed negative, but if the pool test is positive, then each participant in the pool must be individually tested.
Keep in mind that home-testing that is self-administered and self-read is not acceptable — the use of such a test must be observed by a person designated by the employer, which may be an authorized telehealth proctor.
12. Determine if you will cover any cost associated with testing. The ETS does not require you to pay for testing cost. However, other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements may require you to pay for testing. If not required, determine if you will cover the cost. We believe you may have to cover the cost of employee time to test, but guidance is not clear. We recommend that you confirm with your legal representative.
13. Develop a Plan for Accommodation Requests. Your employees may request to be exempt from the testing mandate due to medical or religious reasons and may request a reasonable accommodation. You should be prepared to receive an increase in exemption requests if you have not mandated vaccination or testing previously.
- Is your team familiar with the medical, disability, and religious exemptions? Do they understand the legal obligation of the employer and rights of employees? Does your team understand what retaliation could look like and how to prevent claims? Explore OSHA Whistleblower violation, ADA retaliation claim, Title VII claims.
- Do you have a process in place for employees to request an exemption? What are you permitted to require/request as part of the exemption process? When can you challenge a request and what is your authority?
- Is your team familiar with various reasonable accommodation options to make available to employees? What types of accommodations will you offer? Isolated work? Telework?
- What volume of accommodation options is feasible for your organization before it poses a significant hardship?
14. Develop a plan for testing non-compliance. What if an employee refuses to comply? Will you issue warnings, grace periods, etc.? Will you provide reminders?
15. Determine Method to Collect and Save Proof of Testing. The ETS requires you to keep proof of testing for all unvaccinated employees on file.
- How will you determine if employees are undergoing regular testing? Will people manage the process, or will you utilize a system? Will employees self-report?
- Do you know what information you will request of employees to prove testing status?
- Where will you save this information? Does your current payroll or HRIS system allow you to collect this information? Does your internal communications team have a system that can be leveraged?
- Is your team familiar with how to collect and store/save medical information and understand areas of legal risk?
16. Ensure your time-off system can accommodate the new forms of leave. Ensure your payroll/time-off/time-tracking system has categories for vaccination, vaccination adverse side effects, and/or testing. Ensure your employees know how and when to select these categories in the system or that their managers or HR representatives know how to label these new categories of time-off. Ensure time is marked as paid or unpaid, as the ETS requires, and that the rate of pay in the system is correct.
17. Explore New Technology. We are seeing a huge introduction of vaccination tracking tools to assist employers. Features include:
- Vaccination status tracking
- Testing status tracking
- Employee alerts when next vaccination dose or weekly testing is due
- Storage of vaccination and testing records
- Instant notification to HR when negative test results are reported
- Third-party verification of vaccination record
- Employee (and visitor) symptom reporting
- Instant notification to HR when COVID symptoms reported
- Process to request vaccination exemption
- Process to request testing exemption
- Decision-making frameworks to help employers know when to approve exemption requests
- Request for new COVID-specific PTO
It is important that any technology you use is widely accessible to employees, easy to understand and use, workflows are logical, isn’t too burdens from an It is important that any technology you use is widely accessible to employees, easy to understand and use, workflows are logical, isn’t too burdens from an approval/workflow perspective, and is quick. Consider language and disability barriers. Also, consider if employees will self-manage, or if your HR team will utilize the system independently, removing that responsibility from employees or managing knowledge gaps. Increase manager responsibility in ensuring employee compliance – don’t put it all on your HR team.
Ensure your employees receive adequate, timely training. Also consider if you want to use a third-party to collect and evaluate vaccination or testing credentials to remove that responsibility from your HR team
Some Available Systems:
- The following popular HRIS/payroll systems provide some tools: Paycor, ADP, Paychex, Paycom, Paylocity, Workday, Ceridian, Oracle, SAP
- https://preworkscreen.com/vaccinetracking
- https://myhealthchampion.com/covid19/
- ReturnSafe
- ID.me
- Riskonnect
- Alight
- Express Scripts
- one point
- BP Logix Vaccine Tracker app
- Unum Vaccine Verifier
- https://www.proxy.com/health/
18. Review/adjust insurance coverages to determine health insurance, workers’ comp, and/or liability insurance impacts if you impose a vaccine mandate.
19.Review CBA and union issues. Do you have a union and CBA that come into play? Are there any relevant CBA provisions? What has been your past practice under the CBA with flu or other vaccines? Review and address.
20. Prepare for OSHA Complaints and Inspections. In addition to the requirements of the new ETS, OSHA may ask for your COVID-19 response plan and training records if a complaint is received. Ensure your HR team is prepared and train managers and supervisors how to handle an OSHA inspection.
21. Establish an education and communication plan. How will you communicate with employees? What tone will you adopt? How will you encourage compliance? How can you build awareness and educate employees on the vaccine and possible testing options? Will you rely on external experts to help with communication? Will you host Q&A sessions?
Also, the ETS requires employers to provide each employee with information regarding the prohibitions of 18 U.S.C. § 1001 and Section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation. This provision will help minimize the likelihood that any employee provides false information.
Communicate with employees ASAP so that they have time to collect the required information, can begin thinking about their options, can budget (if needed), can arrange childcare (if needed), etc.
22. Options if test positive. How will you handle employees that test positive? You must immediately remove them from the workplace in accordance with CDC guidance, but if they are well enough to work, do you have work-from-home options available or isolated work options? Are there other flexible solutions to explore, such as temporary reassignment to a different position?
23. Budget & Operations. Ensure you have a team who is considering all of the above and has assembled a budget, for both time and money. Ensure they are considering operational challenges, employee scheduling, and the time commitment of supervisors, HR and Safety personnel. How will you staff and manage schedules if a large number of employees vaccinate during work hours? Can you develop a rotational schedule? What if employees test during work hours?
