On September 9, 2021, the White House announced a series of measures mandating COVID-19 vaccinations for a large portion of the workforce in the United States, specifically private-sector employers with 100 or more employees. OSHA is now developing Emergency Temporary Standards (ETS) for these employers to fully vaccinate their workforce, or, alternatively, require unvaccinated workers to produce a weekly negative test result. It is estimated to take two to three weeks for OSHA to write the ETS so assume proposed effective date beginning in October or November.
Under this mandate and the upcoming ETS, covered employers will be required to give workers paid time off to get vaccinated or recover from any side effects of getting vaccinated. In addition, it’s expected that there will be financial penalties – up to $14,000 per violation – for employers who do not comply with the vaccine or PTO mandates.
Health care workers in most settings that receive Medicare or Medicaid reimbursement are also covered under the Executive Order and the upcoming ETS. The mandate is expected to apply to approximately 50,000 providers all across the United States. Although it is yet unclear, the announcement suggests that covered health care employees will not have the option to get routinely tested as an alternative to vaccination.
Lastly, the President has signed an Executive Order requiring most federal employees and federal contractors to get the COVID-19 vaccine and here, clearly removed the option to instead undergo regular testing. Federal employees and contractors will have about 75 days to get fully vaccinated from the time the Order was signed.
In total, the new mandates are expected to cover almost 100 million workers, which is approximately two-thirds of all U.S. workers.
Understandably, employers who fit in these categories will have many questions about the forthcoming requirements and their implementation, and our firm is diligently following each step of the process, particularly the development and issuance of the ETS.
Both new mandates are expected to include exemptions for individuals with disabilities and for those who refuse the vaccination based on a sincerely-held religious belief, Companies should prepare policies and procedures for navigating religious exemptions and for receiving confidential medical information regarding disability-based exemption requests, all of which can be challenging. In addition, employers should begin now to prepare their Human Resource departments to receive important health information, ensuring employee medical records associated with vaccination status and COVID testing results are kept confidential and in accordance with local, state, and Federal laws.
There are many questions still unanswered, including: (1) who will pay for the COVID-19 tests, (2) which tests will be considered adequate, (3) how to determine the 100-employee threshold (whether it is companywide or location-wide, and whether joint employment will factor in), (4) whether the ETS will cover remote employees, (5) whether employers will continue to be required to provide exemptions, and (6) how employers can verify the vaccination status of their workforce.
As the OSHA Standards are developed and issued, as more information evolves each day, and as legal challenges evolve, our firm stands ready to assist in the maze of what is and is not necessary for compliance. With implementation imminent, it is certainly beneficial for you, as an employer to be prepared with a plan to draft and enact your own policies, put them in place, and efficiently and effectively communicate them to your employees.
Our team at Gatlin Voelker has vast experience in these very types of employee compliance matters. We also know your employees are one of your most cherished assets, and in implementing these mandates, you want the least amount of interruption to your workforce as possible. Our legal team is prepared to help you seamlessly implement these important but challenging employee mandates while the importance of your business moves forward. Call today to make an appointment.