A US Department of Labor emergency rule is now undergoing a required review by the White House Office of Information and Regulatory Affairs, one of the final steps before it is published in the Federal Register and becomes law. The rule requires all employers with 100 or more employees to either ensure their workers are vaccinated against Covid-19 or show a negative Covid test at least weekly.
In addition, the Senate on Monday confirmed Douglas Parker as assistant secretary of labor at the Labor Department; he will be the first confirmed leader of the Occupational Safety and Health Administration since January 2017. OSHA will issue the Emergency Temporary Standard, or ETS, to implement the vaccine requirement that will affect more than 80 million workers in private-sector businesses. Parker, who has expressed his support for the mandate, most recently was the chief of California’s Division of Occupational Safety and Health and was part of President Biden’s transition team on worker health and safety issues.
A Holiday Delay?
White House officials at the Office of Management and Budget held dozens of meetings with labor unions, industry lobbyists and private individuals last week, CNBC reported.
Some business groups are asking the administration to wait until after the holiday shopping season to implement the rule, arguing the mandate could exacerbate labor shortages and supply chain problems.
The vaccine mandate could affect some industries more than others, with trucking, healthcare and aviation just some of the sectors making headlines recently. We will cover these industries and more in upcoming issues of CWS 3.0.
By now, most US organizations will have at least considered their Covid-19 policies and what they will look like going forward.
Elisabeth K. Hall, an associate at law firm Miles & Stockbridge, in a JDSupra blog post provided some proactive steps covered employers can take to prepare for rule. While these suggestions pertain to employees, her suggestions offer food for thought for contingent workforce program managers as they navigate procedures for contingents as well.
Vaccination status. Survey current employees to determine what percentage of your workforce is already vaccinated. This statistic can help inform your decision on whether to implement a mandatory vaccine policy for all or to allow employees the option of weekly testing.
Testing costs. Look into the cost and availability of weekly testing to determine if permitting employees to get tested weekly rather than mandating vaccination for all is feasible for your business. Existing guidance does not address whether employers will be required to pay for employees’ weekly Covid-19 testing, but covered employers should consider whether they could afford to do so if employers are ultimately required to pay for weekly testing.
In addition, in states with laws requiring employers to cover all business-related expenses or employer-mandated testing, you may not be able to require an employee who refuses vaccination to cover the cost of their own testing.
Time-off needs. Consider whether employees will require time off to get vaccinated or tested weekly. Biden’s Action Plan signals a pending requirement that employers provide paid time off for employees to become vaccinated and recover from any vaccination-related side effects. This is already a requirement in the OSHA ETS regarding healthcare employers. Employers may be able to require the use of PTO currently offered to its employees for these purposes, but until further guidance is issued on this topic, employers should assume that additional PTO may be necessary. Employers offering weekly testing as an alternative to vaccination should also consider whether employees will need time off work to get tested and if so, whether such employees will be paid for the time it takes to test, which would likely be considered compensable working time.
Remote workers. Depending on whether the ETS requires remote workers to be vaccinated or otherwise treated the same as nonremote workers, employers with a remote workforce should consider how their mandatory vaccination and/or weekly testing policy will apply to remote employees and whether a permanent teleworking arrangement, for example, is a feasible alternative to vaccination and/or weekly testing for certain employees. However, if the final ETS aligns with Executive Order 14042 as anticipated, employees working remotely, even if they are never physically present in the workplace or never come into contact with other employees during the performance of their job duties, may still be required to get vaccinated like everyone else absent an approved accommodation.
Written policy. Once you have taken the above steps and determined the best method for your business to comply with the forthcoming ETS, you should start drafting a written policy containing the specific requirements that your employees will have to follow and the consequences for noncompliance. Specific considerations for written policies include, but are not limited to: acceptable documentation for proof of vaccination and/or weekly testing, deadlines for submitting the required documentation and a procedure for requesting religious and disability accommodations.
For additional insights and suggestions, see the CWS 3.0 article, “Prepping for President Biden’s mandatory vaccine requirement,” by Fiona Coombe, SIA’s director of legal and regulatory research. SIA has also curated some resources in its Coronavirus (Covid-19) Resource Center.