Human resources leaders and executives in US companies with 100 employees or more must prepare to comply with a pending federal government vaccination mandate that requires employees to get a COVID-19 vaccine or be tested negatively on a weekly basis.
The US 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 for COVID-19 or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
The Biden Administration rolled out the pending requirements earlier this month as part of its “Path of the Pandemic” plan. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private-sector businesses with 100-plus employees, according to the Administration. The requirement is expected to be effective in the next few weeks. This is in addition to similar COVID-19 vaccine mandates for all federal workers and federal contractors to be vaccinated for COVID-19.
Vaccination Mandate Challenges
The pending private-employer mandate will bring a host of challenges for workplace leaders: communication strategies, responding to employee resistance, vaccine and testing results management, managing exemptions and respecting employee privacy -- to name a few. Not to mention, the fines for noncompliance will be steep with some reporting a potential $14,000 per violation.
In other words, HR just got even more difficult and more demanding, if the last 20 months haven’t presented any challenges already.
“If the topic of vaccination was not already front and center for businesses, the Biden Administration’s announcement has made it so for large employers,” said attorney Amy Snyder, who works with public and private employers on labor and employment law matters for Philadelphia-based Eckert Seamans. “Businesses not previously contemplating a mandatory vaccine policy now have additional incentive to do so. It is an important decision, and one which requires advanced planning and careful consideration of business needs and employee and customer safety.”
Workplace Leaders Face a Laundry List of To-Dos
That careful consideration begins with developing the infrastructure for the vaccination mandate. According to Synder, the to-do list for human resources professionals may include:
- Identifying a team of individuals responsible for implementing the ETS and assessing any impact on existing policies and processes
- Determining a method to collect, track and store information about vaccination status and/or testing
- Assessing what, if any, changes need to be made payroll systems to track paid time off for vaccination and any side effects
- Considering testing options
- Considering whether the business will offer incentives to obtain a vaccine
“Vaccination policies may implicate federal, state, and/or local laws, and therefore, human resources should work closely with legal counsel before rolling out a vaccine program,” Snyder said. “For example, a critical component of any vaccination program is how to treat requests for exemptions based on disabilities or sincerely held religious beliefs. HR should collaborate with business leaders to identify who will be involved in decision-making and develop an internal process.”
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Create a Sound Vaccination Mandate Policy, Especially for Exemptions
Developing a written procedure that informs employees how to submit a request for an exemption and describes the applicable standards under which the requests will be considered is a sound practice, according to Snyder. Companies whose employees are represented by a union(s), she added, have to consider bargaining obligations. “Questions about specific exemption requests will undoubtedly arise,” Snyder said.
The key to complying with the terms of the pending ETS while ensuring the company does not run afoul of its obligations to employees under the ADA, is to implement accessible, uniform and updated policies for handling employee accommodation requests, according to Andrew Zelman, partner and labor and employment attorney with Fort Lauderdale, FL-based Berger Singerman.
HR teams should be prepared to properly receive and address requests from employees seeking to be excused from the vaccine requirement, whether as a reasonable accommodation for a bona fide exemption or otherwise, Zelman said.
“These policies and procedures may be contained within a company handbook or as a stand-alone policy,” Zelman added, “and should address both the process for an employee applying for an exemption as well as the responsibility of human resources or management in receiving, responding and engaging in the interactive process with that employee seeking the accommodation.”
Company policies need to be updated and reflect the terms of the ETS once promulgated, as well as those policies which fall within the realm of accommodation requests such as the confidentiality and maintenance of employee medical information, Zelman added.
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Brace for Employee Dissent
Employee reception to the ETS will be mixed in this already-divisive landscape surrounding the pandemic. The pending mandate leaves myriad questions that remain unclear. Two of them, according to Zelman, employer eligibility and defining which categories of workers qualify to meet the 100-employee threshold (i.e. temporary, part-time, remote workers?) are critical.
After the Equal Employment Opportunity Commission (EEOC) provided guidance that mandatory vaccination policies, subject to compliance with reasonable accommodation provisions and anti-discrimination laws, may be lawfully instituted by a private employer, businesses in several industries implemented vaccination policies including those which require testing in lieu of proof of vaccination. (We catch up with one such business below). “For those companies, adhering to the ETS should be fluid,” Zelman said. “For others, the decision to alternatively allow unvaccinated employees to provide negative test results on a regular basis presents additional issues with potential noncompliance, inconvenience and employee dissent.”
Companies also need to brace for operations disruptions. Additionally under the ETS, employers will be required to provide paid time off for workers to obtain the vaccination and then to recover from any side effects, according to Zelman. “HR teams should anticipate and plan for some disruption in the workplace due to the likelihood of employees missing work, even temporarily,” Zelman said.
Nonprofit Already Knows This Vaccine Drill
One company that will be subject to the Biden Administration’s vaccination-or-test mandate is Second Harvest Food Bank of Central Florida, a non-profit food bank and a member of the Feeding America network.
The company has 152 employees and is based out of Orlando FL, serving six counties. It includes four physical sites: two in Orlando, one in Daytona Beach and one in Melbourne. It continues to have several employees working from home, or a combination of home and office, depending on the work. It has employees working onsite — all through the pandemic — in driver, food production and warehouse positions.
The Food Bank got itself ahead of the Biden Administration mandate last month, unknowingly. The company already rolled out a COVID-19 vaccination mandate, weeks before the Biden Administration’s mandate. In late August, Second Harvest Food Bank of Central Florida announced a Sept. 7 date for employees to have received their first vaccination dose or to have requested an accommodation as allowed by federal law.
“As in everything, we positioned this decision around the safety for employees, our volunteers and other guests and our ability to ensure the continuation of business operations without interruption,” said Bill Collins, chief operating officer of Second Harvest Food Bank of Central Florida. “All along Second Harvest Food Bank has remained informed and future-focused on keeping employees safe, the business productive and the community served. As the Delta variant accelerated its spread and we watched other businesses be forced to reduce hours or close operations, we determined the time had arrived to set deadlines for a fully vaccinated workforce.”
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Legal Guidance Was Crucial
As of late August, Second Harvest's vaccination rate was 71%, according to Collins. On Sept. 14, it was at 79% with another 10% finished with their first dose and the second dose pending. The company is currently in an interactive process with 6% of employees who have requested an accommodation for a medical or religious exemption.
“The recent ruling to require employers with more than 100 employees to ensure their workers get vaccinated or get tested weekly is a big lift for HR departments, especially those departments of one — not an uncommon situation,” Collins said. “Legal guidance is critical for the accommodation requests. Our legal counsel is leading us through these requests; there is precedent in the courts for religious exemptions with regard to clothing, working hours/days but little, if anything, with regard to precedent for making vaccination a condition of employment.”
Collins added one key piece for Second Harvest is good communication to all employees and specifically to those who requested an accommodation and are waiting for next steps. “Additionally,” he said, “we are communicating with managers to keep them aware of the timing while we consider accommodation requests.”
Employee Communication Remains Vital
Communication — direct, fact-based and empathetic — will be critical with the forthcoming mandate, according to Eric Yaverbaum, CEO of Ericho Communications.
When communicating your new policies in response to the vaccine mandate, be clear and direct, Yaverbaum said. Communicate exactly what your company’s specific policies will be — as precisely as possible — what’s changing and how those changes will impact employees. Be sure to communicate a timeline and let workers know how long they have to comply with the mandate and company policies. It’s important to make space and have a clear channel of communication open so that employees can ask questions or bring up any concerns, he added.
“Schedule time for a conversation where you do your best to understand the employee’s fears and concerns about the vaccine,” Yaverbaum said. “What exactly are their concerns? What questions do they need answered? What will make them feel confident in the vaccine? Be sure to really listen. Reserve any and all judgment. Having empathy is essential. Be armed with facts so that once they have expressed their fears, you can address them with clear, concise and fact-based evidence.”