Preparing for OSHA’s COVID-19 Vaccination Mandate

**Blog last updated January 26, 2022:

OSHA has withdrawn its emergency temporary standard (ETS), which would have required large employers to mandate COVID-19 vaccinations or undergo weekly COVID-19 testing. The agency is however, moving forward with a proposal to issue a “permanent COVID-19 Healthcare Standard” to apply in the workplace. ExtensisHR will continue to monitor and update this post accordingly.

However, this still applies to healthcare providers servicing Medicare and Medicaid patients.

• If your organization services Medicare and Medicaid patients, the Centers for Medicare & Medicaid Services (CMS) Interim Final Rule (IFR) on COVID-19 Health Care Staff Vaccination applies to your organization.
• The Supreme Court held that CMS had the statutory authority to implement its COVID-19 vaccine mandate rule for healthcare workers.
• The IFR is now in effect and covered healthcare facilities should continue to implement policies and procedures requiring “staff” (as that term is defined in the IFR) to be fully vaccinated against COVID-19.

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Quick Look: On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring private employers with 100 or more employees in the United States to either require COVID-19 vaccinations or allow employees to test weekly for the virus. At this time, a “temporary hold” has been placed on the enforcement of this mandate, but until these challenges are resolved, employers must prepare for compliance. 

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Earlier this month, the Occupational Safety and Health Administration (OSHA) released its long-awaited rule addressing COVID-19 vaccinations for employers with 100 or more employees. Under this rule, employers may choose to require vaccinations or allow unvaccinated employees to wear a mask and provide proof of a negative COVID-19 test on a weekly basis.  

The mandate estimates the ETS will cover nearly 85 million workers and would require covered employers to implement a detailed policy citing requirements for all employees to either be vaccinated or subjected to weekly testing by January 4, 2022. Unvaccinated and partially vaccinated employees would be required to wear face-coverings in the workplace beginning on December 5, 2021. 

However, The Court of Appeals for the Fifth Circuit refuted and issued a “stay” (or temporarily suspended) of the recently released rule. The outcome of this federal decision, as well as other legal challenges to the ETS, are currently unknown. 

So, is the ETA the law or not?  

The “legal” answer is that since the ETS has been stayed by the Fifth Circuit, it cannot be enforced anywhere in the country. This may change if the stay is lifted and the ETS is upheld—meaning, the ETS will be in effect and can be enforced by OSHA.  

Employers should still familiarize themselves with the requirements of the OSHA ETS by clicking on the following links to access more information outlining the specifics: Fisher Phillips - Comprehensive FAQ for Employers and OSHA’s FAQ. 

Planning Ahead: How Can Employers Prepare? 

It may take several weeks before the courts decide on the enforceability of this rule, but employers should continue preparing for the upcoming deadlines while litigation is pending.  

Here are five steps employers can take to assess their situation and prepare to comply if, and when, the ETS becomes effective.  

1. Determine if your company is covered by the ETS

The ETS applies to employers that have a total of at least 100 employees at any time the ETS is in effect, even if the employee count fluctuates above or below 100 employees during this time.

Headcount is calculated using all employees across all U.S. locations, regardless of the employees’ current vaccination status, or where the employee performs their work. Part time and fully remote employees are to be included in this calculation. Two or more related companies may be regarded as a single employer under the ETS if they handle safety matters as one company.

2. Notify your employees about what to expect regarding this mandate

As employers work to navigate the logistics of implementing their vaccination policy in accordance with this ETS, it is important to communicate with employees about what they can expect in the upcoming weeks. Work with your HR advisor, legal counsel, or other expert to create a communication plan of action. However, you will likely need to revisit and tailor your communication plans regularly as the realities of the workplace evolve. 

3. Prepare a compliant vaccination or testing policy

Employers are required to develop and implement a written policy. According to OSHA, the plan should address applicable effective dates and deadlines, who is covered by the policy, procedures for compliance and enforcement, and more, including: 

• A requirement of vaccination of all employees, including new hires 
• A process for requesting a medical or religious exemption 
• Information on determining an employee’s vaccination status and how this information will be collected
• Paid time off (PTO) and sick leave for vaccination purposes
• Procedures for the notification of a positive COVID-19 test
• Procedures for addressing non-compliance, including penalties for providing false documents 

If employers will permit weekly testing (in lieu of vaccination), the policy must also include: 

• H​​​​​ow and when employees are to provide proof of regular testing of COVID-19 
• The requirement to wear a face covering while in office 
• The policy and consequences for non-compliance 

4. Develop a plan to handle reasonable accommodation requests

If testing for COVID-19 conflicts with an employee’s held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation. Employers should follow anti-discrimination guidelines from the Equal Employment Opportunity Commission, the American with Disabilities Act (ADA), and state guidelines when reviewing requests. 

A professional employer organization (PEO) like ExtensisHR can help employers navigate the complexities of this legislation, ensuring policies and practices remain compliant. Support from HR experts protects employers in the event of litigation. 

5. Leverage Your PEO Partner

COVID-19 has brought human resource management into sharp focus for many employers. As CDC and OSHA guidelines continue to evolve, many employers are turning to their PEO company or outsourced HR partner for guidance on how to proceed with the potential mandate-or-test vaccination rule.  

ExtensisHR recognized the need for employers to capture relevant data to keep their workplaces safe and compliant, so we’ve recently launched our new COVID-19 Data Tracker, a tool available exclusively to our clients, that helps easily track and record vaccination and testing information. 

The COVID-19 Data Tracker application, part of our ExtensisHR Work Anywhere® portfolio of modern workforce solutions, simplifies the collection and recording of employees’ vaccination status, and allow clients to comply with the ETS in a seamless manner. 

ExtensisHR’s new COVID-19 Data Tracker will allow employees to easily upload their proof of vaccination or weekly testing requirements and add all necessary vaccine details in a secure and confidential way. Employers will be provided with the information they need to review, track, and maintain records of employees who are vaccinated, as well as those who have opted into weekly testing. They’ll also have access to a roster showing employee status (as required in the ETS), and alerts in the event of an employee’s positive COVID-19 test results.  

The Fight Between a Jab and a Job 

Adapting to employee needs and requests while maintaining HR compliance will continue to be a challenge as policies and best practices shift. While no one knows what the coming weeks or months will bring, it’s important to prepare for potential OSHA inspections, and create processes and standards to meet both your company needs and compliance obligations. 

Are your workplace policies compliant and up to date? Our HR experts are here to help.