On September 9, 2021 the White House launched a six-pronged approach to combat the COVID-19 pandemic. The first prong, “Vaccinating the Unvaccinated,” may impact employers nationwide as the President seeks to vaccinate as many of the 80 million eligible, unvaccinated Americans as possible. What do these directives and Executive Orders mean and where do employers go from here? In short, “Vaccinating the Unvaccinated” includes four parts aimed squarely at employers:
- Direction for the Occupational Safety and Health Administration (OSHA) to develop a rule requiring all employers with 100 or more employees to ensure that (a) their workforce is fully vaccinated or (b) require any unvaccinated workers to produce a negative test result on at least a weekly basis before coming to work. To implement this requirement, OSHA will need to issue an Emergency Temporary Standard (ETS). The timing of the ETS and its effective dates remain unknown;
- An Executive Order requiring vaccinations for all federal employees and certain federal contractor/subcontractor employees;
- A statement that the Centers for Medicare & Medicaid Services (CMS) is taking action to require vaccinations for workers in most healthcare settings that receive Medicare and/or Medicaid reimbursement; and
- Direction for OSHA to require all employers with 100 or more employees to provide Paid Time Off (PTO) for the time it takes workers to get vaccinated or to recover if they are “under the weather” post-vaccination (this requirement will be implemented through OSHA’s ETS).
Although this initiative is vast in scope, many questions remain unanswered. The ETS requiring vaccines for workforces with 100+ employees will undoubtedly impact the largest number of employers. The ETS, however, remains unpublished as of this writing. Once issued, the Office of Management & Budget (OMB) must then approve the ETS before it goes into effect. Some questions not yet answered include:
- Who is financially responsible for weekly COVID testing?
- How much PTO will employers need to provide employees to get vaccinated?
- Can employers mandate employees to use their existing PTO?
- How will the ETS apply to remote workers?
- Will OSHA require employers to implement a formal vaccination policy?
- How will employers verify employees’ vaccination status and/or weekly test results?
- How will the 100+ employee threshold be calculated? At a certain point in time during the year or each day?
Until Washington issues more concrete guidance, it is difficult for employers to determine a clear course of action. Affected employers, however, should begin considering how they will navigate the myriad of legal and operational challenges related to mandated vaccinations and testing, including recordkeeping logistics, policy implementation, collective bargaining hurdles, confidentiality and privacy issues, and reasonable accommodation issues. Stay tuned as we await further information from the federal government. If you have any questions, please contact any Meyers Roman employment lawyer:
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