LLRG has conducted separate meetings with employment law attorneys, OSHA representatives and HR consultants regarding the Biden Administration’s Vaccine Mandate—set to go into effect January 10, 2022. This employer regulation is to be enforced by OSHA. OSHA is set to begin enforcement of the mandate on February 9, 2022. While at the time of this blog post, the U.S. Supreme Court has not issued a ruling on the permissibility of the mandate, legal experts are advising impacted employers to proceed as through the mandate will go into effect January 10th.
There are different vaccine mandates that have been issued by the federal government, with the most publicized pertaining to private employers with workforces of 100 or more employees (full and part-time employees are counted the same). After the Sixth Circuit Court of Appeals yielded on its stay, the mandate was rescheduled to take effect on January 10th. However, multiple appeals have been filed with the U.S. Supreme Court arguing that the Biden Administration does not have the authority to issue such a mandate. The Court has set the cases for oral argument on January 7, 2022. We must share that the various advisors that LLRG’s staff has spoken with encourage our clients to proceed with all efforts to implement a vaccine mandate plan. For the most part, those advisors do not feel that the mandate will be overturned; however, they can see certain facets of the mandate being removed or changed.
Today, more than 204 million people are fully vaccinated in the U.S., that’s 62% of the overall population. So, that leaves an appreciable percentage of the workforce that does not meet the mandate’s requirements. Therein lies the issue for many employers. It’s already difficult recruiting and retaining employees without a vaccine requirement. How much harder will it be when current and potential employees refuse to become vaccinated.
So, what must an impacted employer do to comply with the mandate? The mandate is extensive in his language; however, here are a few key points:
- Employers with over 100 employees are required to keep a roster with a total number of employees, how many are vaccinated, how many are unvaccinated and if they have claimed exemptions for religious or health reasons. This information must be up to date and available to OSHA upon request. Basically, good record keeping practices are a must. There are specialty vendors that have developed online, cloud-based programs to assist employers with these recordkeeping processes for a fee.
- Employers must keep onsite and secured copies of the employee’s vaccination cards/documents. It is recommended that someone within the company be appointed to maintain those records. If called upon by OSHA to produce evidence of compliance, such records would need to be provided. Furthermore, if an employee asks for a copy of their card (even though they are the one that provided it to you originally) an employer has until the end of the next business day to produce a copy for the employee.
- Follow HIPPA regulations concerning medical record privacy and employee rights. For example, while you can (and must) ask the employees if they are vaccinated (as you request evidence of such), you cannot ask an employee that responds no, “why aren’t you vaccinated?” or be critical of them for not being previously vaccinated. Remember, any vaccination records are to be kept confidential and secured.
- If an employee provides an employer with an acceptable reason for not being vaccinated (medical or religious reasons), then the employee must provide acceptable evidence of a “negative” test result on a weekly basis. Furthermore, they must always remain masked while at the workplace. It is recommended that the employer pick a specific day of each week that they require the test results to be presented to them by the unvaccinated employees. There are special exemption forms that LLRG can provide you with to document an employee’s exemption. While there is a shortage of testing kits nationwide and employees may not be able to be tested due to the shortage, there are no exceptions. Unless the employees have a medical or religious exemption, they cannot return to work without evidence of a negative test. Also, the employer is not required to pay for any tests, the burden for being tested and paying for tests rests solely on the employee’s shoulders.
- An employee can use an “at home tests”; however, the administration of such tests must be proctored by a medical professional (telemedicine provider is acceptable) or by an appointed or approved representative of the employer. Otherwise, the unvaccinated employee will need to go to a COVID testing facility and be tested so that they can provide proof of a negative test to their employer (weekly).
- It doesn’t matter if your workforce is spread out across multiple worksites (or even within different states). If your workforce (full and part-time employees are counted the same) is 100 or more employees, you must comply with the mandate.
- If a business has federal contracts that they are working on, then they are required to comply with the mandate, regardless of the size of their workforce (i.e. even if you only have an employee or two).
- If a business is in a healthcare related industry that has patient visitation and interactions, such as doctors’ offices, dentists, and hospitals, then they may be required to comply with the mandate, regardless of the size of their workforce (i.e. even if you only have an employee or two).
- Also, some states, such as California, have imposed added requirements on employers to comply with (in relation to the vaccine mandate). So, you may want to check with your state and local authorities or their websites for more information concerning vaccine requirements.
Many impacted businesses are asking, “what is the likelihood that OSHA will check on my company’s mandate compliance?” Frankly, it isn’t likely that OSHA will initiate any type of massive compliance initiative; however, what is more likely is that a disgruntled employee or a member of the general public would turn in a business that is not in compliance (as is the typically the case with OSHA investigations).
Lastly, you can learn more about the vaccine mandate and the related requirements by visiting the OSHA website and reviewing the Vaccine Mandate FAQ at https://www.osha.gov/coronavirus/ets2/faqs
Look for more updates and information to be posted on the LLRG Blog for as long as the mandate remains in place.