Companies continue to navigate the uncertain terrain of COVID-19 and vaccinations. Many employers have implemented vaccination mandates while others are still wrestling with the right decision. While facing these challenging decisions, President Biden announced the Path Out of the Pandemic COVID-19 Action Plan , which will require all employers with 100 or more employees to ensure their workers are either fully vaccinated or tested weekly. As we await the final rule from OSHA, employers will need to begin considering how they will respond if the rule is enacted. Whether you are an employer that may be required to comply in the future, or if you are still struggling with how to proceed, Resourcing Edge is here to support you as you determine the best approach for your business.

Path Out of the Pandemic COVID-19 Action Plan:

According to the President, “The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule 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. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement.”

OSHA is also developing an additional ETS which will require employers with more than 100 employees to provide paid time off for workers to get vaccinated or to recover from vaccination. The administration is preparing for boosters to start the week of September 20th, subject to authorization or approval by the FDA and a recommendation from the Advisory Committee on Immunization Practices.

Resourcing Edge will continue to monitor the status of these new rules and will provide more information regarding them as it is released.

What We Do and Don’t Know

Many companies may choose to proactively comply with the new rule while others may wait until any pending litigation is resolved. Either way, it is recommended that companies begin preparations now to get a head start on complying with the new rule. Companies with less than 100 employees may choose to implement this rule or similar requirements even though they will not be obligated to do so under the Executive Order.

There will be several issues to consider, and there are still many lingering questions regarding how the rule will be executed by employers. The following will help provide some initial guidance in your discussions to prepare.

How is the 100-employee threshold determined?

It is still unclear if this will be per location or companywide. The rule, when released, should outline how companies will determine if they are required to comply based on this stipulation.

Will remote employees be covered?

Unless the ETS specifically addresses remote employees, remote employees likely will not be covered by the emergency rule. OSHA largely avoids addressing safety issues concerning employees working from home. That being said, it is unclear if remote workers would count in the 100-employee threshold to determine if the company is required to comply.

Will employers be required to provide their employees paid time off to get vaccinated?

As previously communicated, the Families First Coronavirus Response Act (FFCRA) is set to expire on September 30, 2021. At that time, it will be the employer’s decision if they will provide employees with paid time away from work related to the COVID illness or vaccination. It is important to note the states and localities are aggressively adding mandates for paid sick leave or extended COVID leave as a result of the pandemic. It is critical to look at all requirements: local, state, and federal, before finalizing your sick or paid time off policies. The rule as described by President Biden will require employers to provide paid time off for the time it takes employees to get vaccinated and to recover if they are “under the weather” post-vaccination. This requirement will be implemented through the ETS. There most likely will be a delay between FFCRA expiring and adoption of the new rule so employers will need to make some decision prior to the new rule.

How will vaccination status be tracked?

The ETS may provide specific guidance on documentation or may leave that decision to the employer. If the rule requires employers to collect proof of vaccination, this could have a significant impact to employers. OSHA’s record retention regulations require that employers preserve and maintain employee medical records for the duration of employment, plus 30 years. It is also possible that employers may be able to visually verify the proof of vaccination and only track the results without retaining the actual document. Regardless of which method is utilized, it is recommended that vaccination status should be treated as a confidential medical record in accordance with the ADA. Those procedures should satisfy any privacy concerns or challenges.

For employees that will be tested weekly, which test(s) are acceptable?

If specific tests will be required, the rule will outline the requirements. Some employers may choose to fully mandate the vaccine in order to avoid the hassle of managing completion of weekly tests.

Will test results need to be tracked?

Employers should have a plan in place for collecting and tracking test results. This will include identifying who is going to collect the results, when the test results will need to be collected, and how the results will be tracked.

Who will pay for the test?

The question of who pays for testing remains unanswered. It is anticipated that the rule will specify if the responsibility falls to the employer or to the employee. While insurance may cover the cost of the tests, states may have laws that were in place before the pandemic that require employers to pay for mandatory medical tests or reimburse employees for any such testing.

Will employees be paid for time to receive the test?

If testing will be required by the employer, that time receiving the test would almost always be compensable time; however, OSHA has commented that employers will be required to provide paid time off or use of existing PTO. It will be important to remember that testing requirements will need to comply with the applicable wage and hour laws. It is expected that the rule will provide additional guidance.

Accommodations Process

The ADA and Title VII require reasonable accommodations, so long as they do not create an undue hardship, for employees who cannot be vaccinated due to disability or sincerely held religious beliefs. If an employee cannot obtain a COVID vaccine because of a disability, the employer may not require a vaccination unless it can demonstrate that the unvaccinated employee poses a ‘direct threat’ to the health or safety of the employee or others in the workplace. Direct threat assessments must rely on “reasonable medical judgment that relies on the most current medical knowledge about COVID-19.”

Employers are encouraged to develop a robust, clear, and reasonable accommodation policy to address religious and disability concerns. Communicate and administer the accommodation process thoughtfully, emphasizing individualized and confidential consideration of each request. Employers should also be prepared for employees to request an accommodation from the weekly testing requirement.

It is highly recommended that the accommodation process is managed by one decision maker. This ensures consistency in determining what accommodations are appropriate.

Now what?

Employers will need to start considering the points outlined above. Once the details are communicated in the ETS, employers can make final decisions on their responses to comply. Based on those decisions, policies will need to be drafted to explain the company’s procedures. Resourcing Edge is here to help if guidance is needed in creating your policies. As mentioned above, it will be critical to understand the requirements of the ETS in addition to any state and local laws that are in place for vaccinations, paid time off, and other related accommodations.

Employers with less than 100 employees will need to decide whether or not they will leave vaccinations on a voluntary basis. Please refer to the  Returning to Work article from the June newsletter for more information. It will provide helpful tools and resources for determining your protocols for those who are/are not vaccinated. Resourcing Edge is also available to assist with drafting policies to ensure employers are complying with the various accommodations that must be considered.

Ultimately, it is anticipated that the ETS will be released around the 1st of October. Once adopted, it is widely expected that it will face legal challenges. The courts may block enforcement of the rule until any litigation is resolved. If challenged, OSHA must prove that there is a grave danger to the employees of employers with 100 or more employees in order for the rule to be upheld. As the ETS continues to develop, Resourcing Edge will provide as much information as possible to help keep you updated.

 

Jami Beckwith
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