The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced last week its emergency temporary standard (ETS) requiring companies with 100 or more employees to develop, implement and enforce a mandatory COVID-19 vaccination policy or adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
Most workplaces likely knew this was coming. The Biden Administration in September rolled out its “Path out of the Pandemic” plan and revealed its COVID-19 vaccine workplace mandate plans. Now, we’ve got some clarity on how exactly the government, through OSHA’s ETS, is mandating workplaces to comply.
“Vaccine mandates are the next major hurdle in a long list of challenges employers have to face,” said Sydney Heimbrock, a former United States Office of Personnel Management executive and current chief industry advisory for government at Qualtrics. “With OSHA’s published standards, everyone now has the clarity they need to clearly communicate expectations and create processes that employees can easily understand and comply with. The way employers roll out these new policies will be critical to keeping and attracting top talent.”
Understand the Facts of U.S. Government Vaccine Mandate
What steps can organizations take to begin working toward compliance? Of course, one is to watch for lawsuits. But ultimately, organizations are on the hook for compliance, so the first step is understanding some of the compliance requirements at the core of the OSHA ETS mandate:
- Who is covered?: Companies with 100 or more employees, for now. Don’t turn a blind eye if you’re an employer with fewer than 100 employees. OSHA is looking into these smaller companies and “needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination.”
- Who is not covered?: Employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
- What are compliance dates?: Jan. 4, 2022 is an important date. Employees of covered companies beginning Jan. 4, 2022 must be either fully vaccinated for COVID-19 or produce a weekly negative COVID-19 test. Companies must be compliant with all other requirements of the OSHA ETS by Dec. 5. Some of those requirements are listed below.
- What happens to non-compliant organizations?: Fines on noncompliance can range up to $13,653 per violation, and OSHA also cites potential criminal implications for knowingly providing false information.
- Employers must pay employees for vaccination off-time: All covered employers are required to provide paid-time for their employees to get vaccinated (up to four hours of paid time for each shot) and, if needed, provide sick leave to recover from side effects experienced that keep them from working.
- Ensure all unvaccinated employees are masked: All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
- Determine employee vaccination status: The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status and maintain a roster of each employee’s vaccination status.
More requirements, including reporting requirements to OSHA and communication mandates with employees, can be found in OSHA's fact sheet.
Determine Vaccination Status of Employees
Corinne Tirone, director of government relations at Paylocity, said employers need to determine the vaccination status of their staff and also prepare for tracking test results by the Jan. 4, 2022 deadline. However, to do that, employers should ensure they have the correct tech infrastructure in place. As this ETS impacts an employer’s entire workforce, ensuring compliance without the proper systems will inundate their human resources department, taking away time they could otherwise spend on strategic initiatives. “In preparation for this mandate, employers must look at the current systems they have in place to monitor vaccination status in the short term, test results in the near future and evaluate whether that technology is capable of this task,” she said.
First, employers need to be able to determine and track the vaccination status of all employees. Additionally, systems must be in place for non-vaccinated employees to easily upload weekly test results to an organizational-wide system. This system solution should allow HR departments to track, report on results, prompt any necessary action and include follow-up actions.
Technology can help employers ensure employees entering the workplace are not ill, time clocks equipped with symptom screening questions and even temperature screening capabilities can be implemented.
Get HR, IT and Employees Fully Involved
HR departments and IT leaders should be the ones ultimately spearheading this process, according to Tirone. However, once an efficient system for compliance monitoring has been put in place, organizations must encourage and promote active participation from employees.
“It’s critical to have as many team players on board as possible, not just executive leadership,” Tirone said.
Create Transparent Vaccine Policy
Employers' policies must make expectations clear and free from interpretation. According to Tirone, the policy should address the following:
- Requirements for COVID-19 vaccination
- Applicable exclusions from the written policy (e.g., medical contraindications, medical necessity requiring delay in vaccination, or reasonable accommodations for workers with disabilities or sincerely held religious beliefs)
- Information on determining an employee’s vaccination status and how this information will be collected
- Paid time and sick leave for vaccination purposes; notification of positive COVID-19 tests and removal of COVID-19 positive employees, regardless of vaccination status, from the workplace, not allowing them to return until they meet criteria described in the OSHA ETS.
- Information to be provided to employees (e.g., how the employer is making that information available to employees)
- Disciplinary action for employees who do not abide by the policy
In addition to addressing the requirements above, the employer should include all relevant information regarding:
- Effective dates
- To whom the policy applies
- Deadlines (e.g., for submitting vaccination information, for getting vaccinated)
- Procedures for compliance and enforcement
Related Article: The Vaccine Mandate Arrives Soon. Are You Ready?
Provide Education, Transparent Communication
Transparency is vital in this situation, and employers must provide information about the ETS including their policies and procedures for implementing the ETS, educational materials about the vaccine and information about employees’ rights under the ETS, according to Tirone.
“Employers should help educate and update teams on how and why they are putting employee health first,” she said. “Employers should also open up the door for two-way communication to allow a safe space for questions and to track employee sentiment.”
Related Article: COVID Vax Mandate: Should You Stay or Should You Go?
Listen and Lead With Trust
As U.S. companies work through compliance, they need to create open lines of communication with employees, according to Heimbrock. Don’t talk at employees. Talk with them. “It is important for organizations to understand how their employees feel about vaccine mandates, meet them where they are with empathy, and bring them along as they implement new policies,” she said. “Putting these standards in place will require organizations to lead with empathy and understanding.”
Communicate clearly and act swiftly. Leaders who take time to listen to how employees are experiencing vaccine mandates, and make adjustments based on that feedback, will be able to successfully navigate this new workplace challenge. “Vaccine mandates are politically polarizing and have become an emotional issue for employees and their families,” Heimbrock said. “That’s why leading with empathy will be key to creating the environment of trust and mutual understanding we need to successfully navigate this new workplace challenge.”
Make It Easy to Comply, Design for Agility
Employers need to make this easy for employees. Companies can create human-centered programs that enable employees to engage with whatever technology is most convenient for them (email, SMS, QR codes, etc.). Meeting employees where they are will go a long way, according to Heimbrock.
Design for agility. COVID-19 has taught us that situations can change very quickly. “These vaccine mandates are a great example of that,” Heimbrock said. “Having a flexible system in place will allow an organization to plan ahead for various possibilities and be transparent with employees with any future changes. “