As employers, we are responsible for the health and wellbeing of our employees at work and the people our business serves. Over the last two years, this basic responsibility has taken on entirely new dimensions. We quickly had to learn COVID precautions and protocols and take an increasingly active role in workplace health issues.
Now, things have gotten even more complicated and many employers are uncertain about whether they will be required to have their workforce vaccinated in the new year.
Here is the most updated information we have about President Biden’s Vaccine Mandate for businesses with more than 100 employees:
In September, President Biden announced a multi-part plan to mitigate COVID-19 by taking action in the workplace. The first part of that process was to instruct the Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard for workplaces with 100+ employees. On November 4, OSHA unveiled the Emergency Temporary Standard. The plan requires covered employers to have two paths for their employees: 1) Full vaccination or 2) Weekly testing (not required to be paid for by the employee), with full compliance by January 4, 2022.
On November 5, the 5th U.S. Circuit Court of Appeals issued a stay on the ETS, citing that the challenges the plaintiffs brought against the standard “show a great likelihood of success on the merits.” This order was again extended on November 12.
On November 16, the 6th U.S. Circuit Court of Appeals was selected in a lottery held by the Judicial Panel on Multidistrict Litigation to hear 34 consolidated challenges to the ETS. (When multiple cases in different districts are filed against an agency action, the panel must hold a lottery to determine which court will hear the case.)
The 6th Circuit, which has jurisdiction over Kentucky, Michigan, Ohio and Tennessee, has not yet set a schedule to hear the case.
So what should an employer do?
That depends. While the ETS is stayed, employers do not have to comply with its terms. Some employers may choose to do so, while others attempt to draft policies and put procedures in place in case the stay is lifted, and still others may choose to do nothing.
State OSHA plans may adopt the ETS or similar measures or may wait and see how the litigation plays out. Employers should make decisions about what is right for their operations depending on a number of factors:
- Type of workplace. Is your business at high-risk for the spread of COVID. Do you serve elderly or ill clients? Do your employees work inside, in close proximity to each other? Or, can many of your employees work remotely and would vaccines also be required for remote workers?
- Virus mitigation/COVID response policy. Does your workplace have an effective virus mitigation policy that outlines cleaning and sanitation standards, sick policies, mask requirements, etc.? If you don’t, consider enrolling in TSS’s COVID Clean training, which will guide you through the process of developing good policy that will be helpful whether or not the mandate becomes law.
- A mandate action plan. Have you started to think about how you would comply with a vaccine mandate? Who would be in charge of making sure that employees are either vaccinated or have proof of testing? What would be acceptable proof of testing? Who would do the paperwork? You should have documentation procedures in place so that you can be ready for potential OSHA inspections in 2022. What would be the consequences for employees who decline to follow the protocols? What if they have religious or health reasons for not wanting to get vaccinated? How would COVID testing happen and who would pay for it? These are all issues to consider now in case you have to be ready to comply in January.
- The laws. Keep an eye on the court case for the federal vaccine mandate, but also know your local and state requirements. Your municipality or state may institute a workplace vaccine policy even before the 6th Circuit makes any decisions.
As employers, we care about the health and wellbeing of our staff, but a vaccine mandate requires us to evaluate issues related to safety, logistics, cost and employee relations in different ways from what we are used to. It’s important to make your decisions based on what is best for your employees, customers, community and business.