Please note: On Saturday, November 6, the Fifth Circuit Court of Appeals placed a temporary hold on the OSHA Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100 or more employees. The current ruling is temporary, but there are likely to be updates soon. MP will update our materials accordingly. In the interim, our HR services experts recommend employers continue to prepare in case these deadlines are upheld.
Healthcare: A preliminary injunction has enjoined the Centers for Medicare and Medicaid (CMS) from enforcing its COVID-19 vaccine mandate nationwide. Appeals may result in the mandate taking effect later. Employers may choose to proceed considering state-specific requirements and prohibitions, or wait for a final decision on the mandates if applicable. Based on the outcome, all affected employers should stay updated and prepare to respond quickly.
Federal contractors: A preliminary injunction has been declared, prohibiting the federal government from enforcing its COVID-19 vaccine mandate for all federal contractors and subcontractors. Appeals may result in the mandate taking effect later. Employers may choose to proceed considering state-specific requirements and prohibitions, or wait for a final decision on the mandates if applicable. Based on the outcome, all affected employers should stay updated and prepare to respond quickly.
In the latest HR updates, many employers will soon need to meet new regulations regarding COVID vaccine mandates to maintain HR compliance. The new mandates will apply to the following employers:
- Private-sector employers of more than 100 employees
- Employers that are federal contractors
- Employers that provide healthcare services and receive Medicare or Medicaid reimbursement
MP’s HR services team shares a playbook for employers that either may be, or are currently, impacted.
COVID Vaccine Mandates Playbook
1. Create a plan for documenting and recording employee vaccination status.
Employers should begin to develop a system to document, record, and easily access vaccination status. (MP’s HR solutions software assists with tasks like this.) It’s imperative to treat this information as other medical information: confidentially. State laws may provide more detailed guidance on requirements for confidentially requesting and storing employee medical data. (employment lawyers and MP’s HR compliance services may also consult on this matter.) Per the Equal Employment Opportunity Commission (EEOC), employers may ask their staff about their COVID vaccination status without running afoul of federal or state discrimination laws (if executed properly).
If employers are required to collect proof of vaccination status, they should tell employees to only share vaccination documents with the date and source of immunization. If they aren’t explicit in this wording, they risk exposure. Employees may allege they were coerced or felt pressured to share more medical information or family medical history than required.
2. Strategically plan employee policies for COVID vaccination.
Employers should consult with an HR and compliance expert or an employment attorney to determine whether they are permitted to, or should allow, employees the option to be vaccinated or COVID tested weekly. Some employers, such as healthcare providers, federal contractors, or schools, may not be permitted to offer a testing alternative per the rules of the mandates. Beyond compliance concerns, employers should also consider employee engagement. It may profoundly impact employee morale for some teams if they cannot choose between testing or vaccination. In some workplaces, most employees may feel safer if all colleagues are vaccinated. It may be helpful to conduct an anonymous employee survey to better understand what the majority of employees would prefer. (MP’s Perform and Engage software allows employers to easily survey and capture employee data in a digital, anonymous manner.)
Employers that can allow testing should consider whether it will be too burdensome to track and potentially pay for testing. Depending on how the final rules are written and clarified, and on state laws, employers may be responsible for paying for testing (if employees’ health insurance doesn’t cover the cost). Additionally, employers may also be responsible for compensating employees for time spent on COVID testing. Under the Federal Labor Standards Act (FLSA), employers must pay their non-exempt employees for the time it takes for COVID testing during the workday. HR professionals are waiting for further guidance regarding whether the government will assist with testing expenses.
3. Develop a process for requesting and responding to accommodation requests.
Employers must add an option for staff to request accommodations due to medical or sincerely held religious reasons. Pending further clarification, employers must offer the opportunity to request exemptions whether policies require vaccination or if they provide testing alternatives. Employee policies for COVID vaccination or testing should include:
- How employees will request an accommodation
- Who will respond to requests
- Deadlines for making requests
- Expected timelines for responses to requests
- Language that states that employees will not be discriminated against or retaliated against for making accommodation requests
4. Implement a COVID safety plan and prepare for Occupational Safety and Health Administration (OSHA) or Centers for Medicare and Medicaid Services (CMS) inspections or complaints.
If employers haven’t already implemented a COVID safety plan and relevant employee policies, they should do it immediately. A comprehensive COVID safety plan will still be necessary if employees are required to be vaccinated or tested for COVID. These policies will keep employees safe and reduce risk and exposure for the workplace. They’ll also be critical to maintaining OSHA and CMS compliance. All managers should be trained in COVID safety policies and enforce them every day. COVID safety policies should include requirements for:
- Social distancing
- Staying home when sick
- Protocol for reporting and responding to potential COVID exposure or a positive COVID test
- Hygiene and sanitization
- Restrictions on gatherings, especially meetings and employee happy hours, birthday celebrations, etc.
5. Keep watching for further clarification.
Employers must stay alert for further information and clarification on these mandates. The shifting conditions of the pandemic and legal challenges to the mandates may also create further changes—or even halt the mandates altogether. These are some of the questions HR compliance experts still have about the vaccine mandates.
- Will employers be required to collect proof of vaccination? What will constitute proof?
- What type of testing will employers be required to use if they can offer COVID testing as an alternative?
- Will the mandates apply to remote employees?
- How will things change if the FDA approves booster shots for the vaccinations?
- Will employers need to compensate employees for time spent testing?
- How will employers be required to pay employees for time spent getting vaccinations and recovery from side effects?
- Will employers be required to collect and retain test results?
- Will the federal mandates preempt state and local laws that prohibit discrimination based on vaccination status?
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