In an effort to squash the Delta variant—the latest threat to the struggle to combat the pandemic—President Biden has directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to carry out a private-sector vaccine mandate as part of his COVID-19 Action Plan: a mandate that presents a number of business challenges.
On October 12, 2021, OSHA sent to the White House’s regulatory office for approval a draft of the private-sector vaccine mandate requiring all employers with at least 100 employees to either ensure that their workforce is fully vaccinated, with paid time off to get vaccinated, or require unvaccinated workers to produce a negative COVID test at least once weekly—an emergency temporary standard (ETS) requirement that would affect two-thirds of the country’s workforce and carry with it a fine of up to nearly $14,000 per violation. This is a huge step towards advancing the President’s vaccine mandate, and we are that much closer to getting guidance on how to deal with the business challenges brought on by this mandate.
Company positions along the spectrum of vaccine mandate acceptance
The President and his administration are encouraging covered companies to jump on the vaccine mandate bandwagon immediately, as opposed to waiting for clear rules from OSHA. Some have done just that, including Tyson Foods Inc., Microsoft Corporation and The Walt Disney Company, to name a few. Others, like Dollar General Corporation, Unilever PLC and Target Corporation, have chosen not to mandate vaccination, but rather encourage it with incentives, such as paid time off and free car rides to and from appointments (see SECPlus Filings Highlight (“Highlight”), Tyson and Others Require Vaccine and/or Weekly Testing Ahead of President Biden’s Vaccine Mandate, dated October 20, 2021 and available on Thomson Reuters Checkpoint, together with the other Highlight referenced herein). Still others are hesitant to act on the mandate. Though these wary companies may welcome it and want their employees vaccinated, they may be concerned about alienating and losing employees by mandating vaccines before they need to. They also may not be interested in devoting resources to a vaccine program without some assurance that it’ll align with the administration’s looming mandate. And then they may be tempted to wait for the outcomes of related legal battles before carrying out requirements of their own.
Naturally, many of the wary are waiting with bated breath for the ETS to take effect because they look forward to the opportunity to identify it as the reason for changes to their vaccine policies. They also look forward to using it as a roadmap for best practices around addressing the business concerns that are top of mind for companies, regardless of where they fall on the spectrum.
Questions for covered companies to ponder during their early preparations for the vaccine mandate and beyond
Though legal challenges have been, and will likely continue to be, launched against the vaccine mandate, President Biden has the authority to direct OSHA to publish and enforce an ETS. Moreover, any changes to, or delays associated with, the ETS wouldn’t likely crop up until after the requirements go into effect and that could take some time.
So, covered companies, if you haven’t begun preparing for the vaccine mandate, get to it post-haste. Consider the following logistical, corporate governance and legal questions, as well as any others that you may have. Then, as you digest the ETS, which appears to be on the horizon, look for clarity around your concerns to help develop your compliance approach and related written vaccine policies.
1) Logistical challenges
- Applicability. Will the vaccine mandate only apply to on-site workers or will it also apply to remote workers who are never in the office? Will it apply if your employee headcount regularly swings above and below 100?
- Employee count calculation. How will your employees be counted? For example, will the calculation be based on your company-wide population or on the numbers at a particular site? What are the implications for joint-employer arrangements? Will the headcount at subsidiaries factor into the equation?
- Requests for exemptions. How will you handle requests for exemptions based on disabilities, pregnancies and religion? For example, in the case of larger companies that are likely to receive many such requests, what can be done to keep the time-consuming case-by-case analysis from hindering the process?
- Vaccines/tests. Which COVID-19 vaccines and tests will be acceptable under the mandate? Do you understand the various options? Will the mandate include boosters?
- Cost of Testing. If an employee opts for weekly testing instead of free vaccination, will the cost of the testing fall on you or the unvaccinated employee?
- Supply-chain impact. In light of supply-chain issues, will there be a sufficient number of tests available?
- Tracking process. What’s the appropriate method of collecting, documenting, verifying, and storing information related to your employees’ vaccination status and weekly testing? Will this process be negatively impacted if employees need to wait several days for their test results? Will there be any relief for smaller companies that may lack the necessary resources to effectively manage the tracking process?
See Highlight, Aspen Group and Others Share Business Challenges That May Arise Due to Potential Vaccine Mandate, dated September 28, 2021, for a discussion of business challenges faced by several companies on account of the mandate.
2) Other corporate governance challenges
- Paid time off. Will you be able to require your employees to use their current paid time off (PTO) when getting vaccinated or recovering from vaccine symptoms, or will you need to create a new PTO category? If the former, what if an employee exhausts his/her PTO, but needs vaccine-related time off? If you need to put unvaccinated employees on leave, will they be able to use PTO during that time or will they be on unpaid leave?
- Employee productivity. In the case of employees who get vaccinated during the workday, will late arrivals and early departures because of testing affect productivity?
- Budget. Will your budget allow for employer-funded vaccine testing during the entire period that the ETS is in effect (i.e., for six months to start, after which it could be extended for another six months or made a permanent standard), or is mandating free vaccination a better option?
- Compliance timeframes/disciplinary procedures. What are your compliance timeframes for current employees and new hires, and what disciplinary procedures are in place for noncompliance, up to and including termination?
- OSHA inspections. Are you prepared for potential OSHA inspections?For example, have you established a COVID-19 policy and communicated its requirements to your employees (because an inspector would likely focus its examination on not only ETS requirements but also your COVID-19 response plan and training records)? Also, do your managers know what to do and say during an OSHA inspection?
3) Legal challenges
- “Grave danger” threshold. What are the implications of the ETS being met with legal challenges due to claims that OSHA failed to demonstrate that workers “face grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that the rule is necessary to protect workers from the danger?
- Exemptions. What if in the course of mandating employee vaccination, permissible under US Equal Employment Opportunity Commission (EEOC) guidance, you fail to fully comply with the American with Disabilities Act (ADA), Title II of the Genetic Information Nondiscrimination Act (GINA) and/or Title VII of the Civil Rights Act (for more discussion, see blog posts titled EEOC Updates Guidance on Employer Vaccine Incentives and What do employers need to know about COVID-19 vaccination mandates)?
You can use the above as a checklist and guide to better inform your vaccine compliance protocols and related written policies, which will undoubtedly evolve as more and more information becomes available and as COVID-19, itself, evolves.
Food for thought for uncovered small companies
Even if you’re not covered under the vaccine mandate, that doesn’t mean this will always be the case or that you can’t require vaccinations on your own. Consider what your vaccine policy would look like if you were to establish one, and stay abreast of what’s going on in this space.
Want to keep pace with new developments from the Biden administration and OSHA regarding the private-sector COVID-19 vaccine mandate? Visit our estore today and check out (1) SECPlus Advanced with its real-time public company filing examples and Highlights, (2) expert guidance in EBIA’s HIPAA Portability, Privacy & Security, Consumer-Driven Health Care and Group Health Plans: Federal Mandates Other Than COBRA & HIPAA manuals, and (3) Practical Law updates on COVID-19 employment law and guidance.