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Complying with the Federal Vaccine Mandate

When President Biden issued plans for workplace vaccine mandates on September 9, many employers immediately had questions and concerns. According to the directive, the Occupational Safety and Health Administration (OSHA) is to create an emergency temporary standard (ETS) stating that private-sector employers with more than 100 workers are required to mandate COVID-19 vaccines for their workers or insist that they are tested weekly. Meanwhile, government employees and government contractor employees must be vaccinated, with no option for testing. These mandates will affect millions and millions of workers.

Is the Directive Legal?

Some companies had already issued vaccination mandates, so this directive seems to validate those decisions. However, it forces the requirement on other businesses. Several unions and other professional associations wonder if the directive is really legal, and many state governors are arguing against it. However, the administration believes that OSHA is obligated to issue the ETS since it directly impacts employee safety. In addition, earlier this year, the U.S. Equal Employment Opportunity Commission (EEOC) provided guidance for employers and stated that requiring vaccines is acceptable as a condition of employment.

How Soon Does It Take Effect?

OSHA will probably issue the ETS fairly soon, and it will take effect several weeks later. Then the ETS can remain active for six months. After that, OSHA will need to create a permanent standard, which may take longer.

How Should Employers React?

If you are still working out your vaccine policy, there are many issues to consider. For example, maybe you offered incentives, and your company is already mostly complaint. Or maybe you have vaccine-hesitant employees, and you are not sure how to address their concerns. Whatever your situation, if you have more than 100 employees, you will need to take steps to follow the anticipated OSHA ETS.

For instance, you will need to find a way to track all your employees and determine who is vaccinated. Work with HR to devise a process, but be sure to keep all this medical information confidential. Then determine if you will make vaccination a required term of employment or if you will allow the weekly testing option. If you allow testing, create a way to track those results. That may be a time-consuming task, but you must keep accurate and up-to-date records. Also, if the testing is not free, be sure to follow your local laws regarding whether you or the employees will cover the costs.

You will undoubtedly have workers who will request accommodations. If they have legitimate medical or religious reasons to refuse the vaccine, per the Americans with Disabilities Act (ADA) and Title VII, discuss the matter with them. Be sure to address all accommodation requests and treat all your employees equally. However, no matter how thoughtful or accommodating you are, some workers will refuse the vaccine and the testing. In those cases, you and HR must be ready. Some workers may resign, but you may be forced to consider disciplinary action, including termination, for others.

Where Can You Get Help?

The COVID-19 pandemic has been remarkably challenging for everyone over these last several months, and managing a vaccine mandate may feel overwhelming. If you have questions about both your rights and your legal obligations, do not hesitate to consult with legal counsel. The experienced employment attorneys at Cotney can review your situation and provide sound advice that will protect your workers, as well as your company.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.