How Your Company Can Manage the Vaccine Mandate
The COVID-19 pandemic has presented the world with a host of challenges—from security measures to supply shortages to debates about personal freedom. And now, as President Biden has issued a directive related to vaccine mandates, the questions and arguments continue. How can your company comply and still accommodate your workers?
About the Mandate
President Biden has tasked the Occupational Safety and Health Administration (OSHA) with issuing a vaccine rule for companies with 100 or more employees, requiring workers to be vaccinated or be tested weekly. Such a rule will have an impact on millions and millions of U.S. workers. To guide this requirement, OSHA will issue an emergency temporary standard (ETS), and employers that do not comply could be charged fines of $14,000 per violation. OSHA’s rule is expected to include providing paid time off for employees to be vaccinated and recover from any side effects. Employees who refuse vaccination must submit to weekly testing and may have to pay for that cost.
Beyond this private-sector directive, all federal contractors and employees are required to be vaccinated. This mandate will affect construction, as well as many other industries. It will also impact millions of healthcare professionals working in medical facilities funded by Medicare and Medicaid.
How You Can Respond
Before this announcement, companies of all sizes were struggling with how to handle vaccine requirements at work. Some issued their own mandates, but many others offered encouragement and incentives, while respecting personal decisions. And still others had begun exploring the idea of adding surcharges to medical insurance premiums for unvaccinated employees.
It is expected that OSHA will enact the ETS in a matter of weeks. If you employ more than 100 workers, below are steps you can take to prepare:
- Determine how you will document vaccinated employees. If you do not have a process already, devise a system for knowing who is vaccinated and unvaccinated. You will likely need to request a copy of your workers’ vaccination cards. Be sure to keep this medical information confidential.
- Make a decision about enforcing the mandate or allowing for testing. As the U.S. Equal Employment Opportunity Commission (EEOC) stated months ago, you have the right to make vaccination a term of employment at your company. However, if you choose to allow a testing option, you must guarantee that your unvaccinated workers are tested every week.
- Create a plan for tracking testing results. Although it will be time-consuming, you must track testing results and keep accurate records. In addition, if the testing is not free, you must follow laws in your area to determine if you or the employees will cover that expense.
- Be ready for accommodation requests. If you mandate vaccination, some employees will likely request accommodations. If they have legitimate medical or religious reasons for avoiding vaccination, such as those outlined in the Americans with Disabilities Act (ADA) and Title VII, you must make every effort to accommodate. Also, be certain that you do not play favorites—you must treat all your workers fairly and equally.
- Expect employee pushback. The vaccine mandate is a contentious issue, and some workers will not agree to the vaccine or the testing. Take time to talk to your HR department and discuss how you will respond to those workers. You may need to consult legal counsel as well. In the end, some employees may leave your company on their own, but you may find yourself being forced to terminate others. You must walk a fine line between following the OSHA rule and respecting your workers.
There has already been much disagreement about the validity of the presidential directive. Some companies see it as validation of the vaccine mandates they had already adopted. Meanwhile, other businesses and professional organizations see it as government overreach.
No matter what your position is, you must understand your obligations, both to OSHA regulations and to your employees’ well-being.
Also, keep in mind that OSHA will likely step up its inspections after the ETS is issued. So be sure to maintain thorough documentation of your vaccine policy and continue to follow other COVID-19 safety guidelines. Finally, if you have concerns about your rights and responsibilities on this matter, do not hesitate to consult an experienced OSHA defense attorney.
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.