New COVID Vaccination Mandates: 3 Things Employers Must Know

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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Per an announcement from the Biden Administration, many employers will be required to mandate COVID vaccination or weekly COVID testing in the near future. MP’s HR services team shares three points employers must know right now.

1. New COVID Vaccine Mandate Overview

The Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) will be writing temporary emergency rules that will mandate private sector businesses with 100 or more employees to:

• Require COVID vaccination from employees or weekly COVID testing
• Allow for employees to request exceptions for religious or medical reasons
• Give paid time off for vaccination or recovery from vaccine side-effects
• Pay fines of up to $14,000 per violation of these temporary rules

Employers who are federal contractors must:

• Require all employees to get fully vaccinated within 75 days of September 9^th, 2021
• (Note there will not be a testing option for these employees without a valid exemption)
• Provide time off for employees to get vaccinated or recover from side effects of the vaccine

Additionally, employers of healthcare workers or workplaces that receive Medicare or Medicaid reimbursement must:

• Require all employees to get fully vaccinated within 75 days of September 9^th, 2021
• (Note there will not be a testing option for these employees without a valid exemption)
• Provide time off for employees to get vaccinated or recover from side effects of the vaccine

2. How Employers Should Prepare

Employers that these temporary emergency rules may impact should begin by encouraging employees to get vaccinated. Management could provide information about vaccines, where vaccines are obtained, offer time off to get vaccinated or recover from vaccination, and reimburse for transportation to and from vaccination sites. Employers may refer to the American Rescue Plan Act (ARPA) and state-specific laws when applicable regarding paid time off for vaccination and recovery from vaccination side effects.

Beyond encouraging vaccination, employers could consult with their employment attorney or their HR compliance services provider (like MP) to develop a plan of action. Employers may want to begin drafting employee policies to require vaccination. Policies should:

• Be ADA compliant, allowing for exceptions for people with qualified disabilities
• Allow for exceptions for people who refuse vaccination due to religious beliefs
• Outline the process for requesting an exception to the vaccination policy, including who will handle the requests

3. What is Next?

Employers and HR professionals are waiting for OSHA to write the COVID vaccination rules for private-sector employers. OSHA and the DOL may enumerate on further questions about the new mandates, including:

• How is employer size determined?
• Will remote employees need to be vaccinated or tested?
• Will employers need to pay for testing?
• Could employers transfer the cost of testing to unvaccinated employees?
• Will employers need to pay for time off for employees to obtain COVID testing if they refuse vaccination?
• How will employers and employees prove vaccination status, if at all?