GETTING PREPARED: OSHA COVID-19 VACCINATION MANDATE

Large employers with over 100 employees should start strategic business preparations now to comply with the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS).

On Sept. 9, 2021, The White House announced the implementation of a national plan requiring all private employers with 100 or more workers to mandate COVID-19 vaccination (or a weekly test) for all employees, excepting those with disability or religious accommodations. The effective date of this requirement is currently unknown.

On October 12th, 2121, the Occupational Safety and Health Administration (OSHA) submitted a draft of the emergency temporary standard (ETS) to the Office of Management and Budget (OMB). While the public does not know details about the contents of this ETS, it signals that the rule is indeed moving forward as expected and could be in effect in as little as a few weeks.

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Large employers should start business preparations now to comply with the ETS. 
What can you do right now to get prepared?

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DETERMINE IF YOU ARE A “LARGE EMPLOYER”.

Per the rules of this executive order (The Path Out of the Pandemic), private-sector employers with at least 100 employees are waiting for OSHA to issue an ETS requiring employees to get vaccinated or submit to regular COVID-19 testing. This plan also requires covered private employers to give workers paid time off to obtain the vaccination, and to recover from any side effects due to the vaccination. OSHA officials have stated that the 100-employee threshold will be based upon a companywide headcount rather than the number of employees at a particular site.

Employers should count all employees individually, whether they are full time, part time or working on a temporary basis. Independent contractors and leased employees (where you are not the employer of record) are not counted.

Further joint-employment stipulations may be addressed in the ETS.

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​PULSE SURVEY YOUR EMPLOYEES ANONYMOUSLY.
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Understand how many unvaccinated workers you have. This will help determine the best approach for your organization. For example, an employer with only 10 unvaccinated workers might allow those employees to choose either vaccination or weekly testing, whereas a company with 100 unvaccinated workers may find the logistics of collecting weekly testing documentation too difficult, and therefore decide not to offer the testing option.
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Surveying employee feelings about required vaccination will also help you prepare for communications around your new policy. Should unvaccinated employees disclose they will quit instead of getting a vaccine, this information can also be used to prepare for workplace staffing needs and associated costs.
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​DECIDE ON YOUR COMPANY TESTING POLICY.

Whether you plan to offer the option of weekly testing to unvaccinated workers, or only use testing as a religious or disability accommodation, the logistics of this should be discussed and reviewed in detail before determining the best course of action. Some questions you should ask include:

• Are there testing locations near your workplace? What are their hours? How long does it take to get testing results?
• Is onsite testing a more convenient option? If your company has a large number of unvaccinated workers, a vendor-run testing program at the workplace might be a good approach.
• What day(s) of the week will you require testing? Will local testing locations be open and available to test all impacted workers? How will employee late arrivals or early departures for testing affect productivity?
• What are the projected costs for both the employee and employer for testing? Contact local suppliers to compare pricing, including organizations that provide onsite testing services. The IRS has stated that in-home tests would be reimbursable under flexible spending accounts and health savings accounts, which may help employees manage costs.

​ADDRESS REMOTE WORKERS.

While the executive order requiring vaccination for federal workers also requires most employees working from home to be vaccinated, the ETS for large private employers may not. If an employer has remote workers who will never come into the office, employers may be able to use remote work as an option for unvaccinated workers.

If allowed by the ETS, an employer may choose to consider a full-time remote-work option for the unvaccinated, determine how many employees this would apply to, what the employee-eligibility requirements would be, what the associated costs with long-term telecommuting might be and any other data that would be meaningful to your company.

CONSIDER AMENDMENTS TO YOUR PTO POLICY.

This executive order calls for paid time off (PTO) to be given for an employee to receive the vaccine and to recover from any side effects. While the ETS will provide details on this requirement, OSHA has stated that employers will likely be able to require the use of PTO the employer currently offers to its employees, rather than require additional paid leave.

Nothing, however, would stop an employer from creating a new type of paid leave specifically for this purpose. Hopefully the regulations will address the proper actions to take if an employee who has already exhausted their PTO needs time off to receive the vaccine or recover from it. Until then, you may wish to consider whether offering a new bank of leave or advancing PTO to these employees might work better for your organization.

For employers who include a testing option for unvaccinated workers, the time spent obtaining a COVID-19 test may be considered hours worked depending on the circumstances, such as directing employees to use a specific provider at specific times. The ETS should provide further guidance on this.
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​CREATE A WRITTEN VACCINATION POLICY - AND STICK TO IT.

A clearly written vaccination policy should detail the requirements you have decided upon for your employees and detail the consequences for noncompliance, as well. After thorough examination of the data and information you collect, your company policy should:
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• Determine if you will allow unvaccinated workers the option of weekly testing in lieu of vaccination or require vaccination for all employees without the option for weekly testing, except when allowed as an accommodation.
• Help employees find vaccines, testing locations, and provide cost information if applicable.
• Decide who will pay for testing, if not required by the ETS.
• Discuss your plan for PTO, if not required by the ETS
• Consider if you will allow full-time remote-worker positions to be excluded from the requirements, if allowed under the ETS.

Managers and their appointed representatives should be responsible for supporting, complying with, and providing recommendations to further improve this COVID-19 plan. Electing or hiring a department or company-wide COVID-19 coordinator is a good idea for the implementation and adherence to your vaccination policy, as well as for information collection, recording, and reporting of outcomes.​

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COVID-19 VACCINE POLICY TEMPLATE

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LEAD WITH EMPLOYEE COMMUNICATIONS.

Start developing employee communications as soon as possible. Be the credible source your employees get their information from. Send an email to employees with information about the executive order and the upcoming ETS that explains how your company will remain in full compliance. This will help to set expectations of what’s to come.

​Communicate ahead of time where employees can go to get vaccines near the workplace, or how to find a location near their homes, and keep this information easily accessible. Detail your testing policy, and how employees would seek tests either inside or outside of work.

Some employees will choose to leave the company rather than be vaccinated, and early communications may give them a head start. If warranted, employers may want to communicate that a discharge for violating a company policy (such as mandatory vaccination or testing) generally makes an individual ineligible for unemployment insurance. 

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WHAT'S NEXT?

The governors of several states have indicated they will challenge the mandatory vaccinations for the private sector, so it is possible some of these new requirements may be delayed until legal challenges are resolved. Employers should not assume their obligations will be lifted, however, and should prepare starting now. 

Related Reading: Path Out of The Pandemic
Guidance Provided by: The Society of Human Resource Management

 

READY TO GET STARTED?
GET THE OSHA ETS EMPLOYER PREPAREDNESS BUNDLE HERE.

ETS PREPAREDNESS CHECKLIST
EMPLOYEE PULSE SURVEY TEMPLATE
COVID-19 VACCINE POLICY TEMPLATE
EMPLOYEE COMMUNICATION TEMPLATE

​This article is for informational purposes only. It is not meant to be construed as legal advice. It does not address all potential compliance issues with federal, state, or local standards. Consult your licensed representative at Grooms Benefit Solutions or legal counsel to address possible compliance requirements.