COVID Vaccine Mandates: Critical Updates for Employers

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.

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The Occupational Safety and Health Administration (OSHA) recently released an Emergency Temporary Standard (ETS) for the COVID vaccine mandates. This ETS entails requirements for employers with over 100 employees. Covered employers must:

• Adopt mandatory COVID vaccination employee policies; or
• Develop policies requiring employees to be vaccinated or test negative for COVID weekly and wear a face covering when indoors (at work)

Per the ETS (which trumps any state or local legislation regarding an employer’s ability to require COVID vaccination, testing, or masking), covered employers must ensure their employees receive

• Two doses of the Pfizer or Moderna vaccine; or
• One dose of the Johnson & Johnson vaccine by January 4^th

After January 4th, covered employers must ensure employees who haven’t been fully vaccinated produce a negative COVID test result weekly.

MP’s HR services experts share the three common questions and answers employers are asking right now.

Who is covered by the ETS?

The OSHA ETS applies to:

• Employers with 100 or more employees on or after November 5^th, 2021
• All employees will count, including: full-time, part-time, remote, hybrid-remote, and in-office
• Some employers may be completely or partially exempt if they’re subject to the federal contractor Executive Order of the COVID ETS

The employees of a covered employer are required to either get vaccinated or test weekly for COVID and wear a mask inside at work. These employees are exempt:

• Employees who work alone— they have no contact with coworkers, clients, or customers
• Employees who work outdoors exclusively
• Employees who work from home exclusively

Note that it’s possible (though unlikely) for an employer to be covered by the ETS, yet all of its employees are exempt because they work exclusively outdoors, from home, etc.

How do employers write a COVID vaccine and testing policy?

Employers may choose to write policies for their employee handbook that either:

• Require all employees to be vaccinated (with exemptions allowed for religious reasons or medical reasons to remain ADA compliant); or
• Permit employees to choose between vaccination and weekly COVID testing

The policy must be written based on the requirements in the ETS. Policy templates are available here. Employers may develop multiple policies for different kinds of workers. The reason for implementing different policies must be based on a legitimate business reason.

Covered employers must provide up to four hours of paid time off (PTO) for employees to:

• Get vaccinated
• Travel to and from vaccination sites

This time must not come from an employee’s leave bank. Employers aren’t required to reimburse employees for transportation costs to be vaccinated. (However, a state or city law may require employers to reimburse employees for this mileage.)

Covered employers must provide two days of paid sick time to recover from vaccine-related side effects. Employers may require employees to use their accrued sick leave for this time, but not other PTO (such as vacation or personal days).

How do employers offer testing options?

Employers are not required to offer testing options. If they choose to offer testing weekly as an alternative to vaccination, they’re not required to pay for the cost of the tests. (Note that some state or city laws may require this.) Employees must undergo testing in the workplace or at an official testing site. Employees shouldn’t be permitted to test at home unless they work with an “authorized telehealth proctor,” who observes the testing process and reads the result.