By Renee Mielnicki, Esquire and Cara Kelley, CLMS
On September 9th, 2021, President Biden announced a six-pronged national strategy to combat COVID-19. The President’s plan includes a policy intended to boost the number of vaccinated individuals in America.
The most notable prong of the President’s approach pertaining to employers is: “Vaccinating the Unvaccinated.” Here are the main points that we know so far:
- The Department of Labor’s Occupational Safety and Health Administration (OSHA) has been directed to issue an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. This requirement will impact over 80 million workers in private sector businesses. Please note that if you are one of our public employers, the ETS may not apply to you. In addition, this requirement will not take effect until the ETS is issued by OSHA. No expected timeframe for the publication of the ETS or additional details have been given yet.
- OSHA has also been directed to develop a rule that will require employers with more than 100 employees to provide paid time off to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS. Since the ETS has not yet been developed, these are the only details we know so far. How much paid time off that must be given is unknown.
- A new Executive Order has been issued for federal contractors. Since July, federal workers have been required to be vaccinated. The President has signed an Executive Order to take those actions a step further and require all federal executive branch workers to be vaccinated. He has also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government.
- Vaccinations will now be required for over 17 million health care workers at Medicare and Medicaid participating hospitals and other health care settings. According to the White House, the Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.
Unfortunately, these are the only details we know so far. Until more information is released, employers impacted by the Plan should begin planning for compliance. For instance, employers given the option to mandate the vaccine or implement weekly COVID testing may want to consider the logistics of compliance. Each option comes with its own legal and operational challenges, such as tracking and storage of information, costs, confidentiality, wage and hour compliance issues, challenges from unions, and requests for accommodations for religious or medical reasons.
We have already spoken to many of our employers since the Plan was announced and here are some options and challenges discussed:
- Mandating the vaccine and only allowing the testing option for employees exempted for medical or religious reasons. We do suspect if employers mandate the vaccine, they will need to be prepared to respond to these requests for exemptions which can be difficult and time consuming to manage.
- Implementing the weekly test option. Some of our employers are concerned that mandating the vaccine will cause their employees to resign when they are already struggling with filling jobs during a labor shortage. In that case, this may be the best option. Both this option and taking the stance on mandating the vaccine raise questions around who pays for the cost of the test and time spent by employees getting the test. Our previous blog addressed those questions, and we suspect our answers remain unchanged unless the ETS directs differently.
- Let the employee choose between the vaccine or the weekly testing. If forced to pick one, there may be one option that unvaccinated employees prefer over the other.
Since this rule will be developed by OSHA, we believe that the risk of non-compliance may result in significant fines for our private employers. For Medicare and Medicaid participating hospitals and other health care settings, they risk potential fines and the withholding of federal funding. Our federal contractors also risk fines and perhaps losing the ability to contract with the federal government.
We will be continuing to monitor this situation for additional information and will keep our readers posted. For now, affected employers should be thinking about how they will comply with these rules and be prepared to change plans, if necessary, when the details of the ETS are released.
If you are an employer with questions about any safety, workers’ compensation, or human resources issue, contact East Coast Risk Management by calling 724-864-8745 or emailing us at firstname.lastname@example.org. We will be happy to help!
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