Editor's Note: A U.S. federal appeals court issued a stay on Saturday, Nov. 6, freezing the Biden administration's vaccine mandate, citing "grave statutory and constitutional" issues with the rule. This is a developing story.
Private employers with more than 100 employees will have to ensure by Jan. 4 that their workforce is vaccinated or tested weekly for COVID-19 as part of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) issued on Thursday.
The ETS is in accordance to the Biden administration’s vaccine directive issued in September aimed at covering 80 million private-sector workers. Businesses that don’t comply can face fines of up to $13,600 per violation.
To determine whether they meet the 100-employee threshold, employers must include all employees across all of their U.S. locations, regardless of employees' vaccination status or where they perform their work, per the ETS. Part-time employees count toward the company total, but independent contractors do not.
Organizations subject to the rules must ensure that employees who aren’t vaccinated against COVID-19 produce a negative test at least weekly and wear a mask in the workplace. Employers aren’t required under the new policy to provide or pay for tests, with potential exceptions if collective bargaining agreements compel them to do so.
Employers, however, are required by the ETS to provide up to four hours of paid time and reasonable paid sick leave needed to support vaccination. Organizations also must require each vaccinated worker to provide proof of vaccination status, according to the ETS. Acceptable documents include a record of immunization from a provider or pharmacy; a copy of a CDC COVID-19 vaccination card; medical records; immunization records from public health, state or tribal immunization information system; or a copy of other official documentation that contains the type and dates of vaccination.
Given the tight labor market, there’s been concern that implementing vaccine or testing mandates on employees might lead to additional turnover. A recent WorldatWork pulse survey found that more than 85% of a pool of 238 employers said they are at least somewhat concerned about losing employees over the mandate, while 14% indicated they were “extremely concerned.”
The survey additionally found that 27% plan to terminate employees who refuse to comply with the mandate. Additionally, 62% said they have not made a decision yet as to whether they will fire an employee who doesn’t comply.
“The vaccine mandate definitely creates more wrinkles for employers as they navigate current staffing and retention challenges, said Deirdre Macbeth, content director, regulatory, at WorldatWork. "There is no easy solution and organizations will need to do a risk-benefit analysis of the implementation options to determine the best path forward.”
However, there’s belief that the mandate will ultimately increase vaccination rates and lessen the spread of COVID-19.
“I expect we’ll continue to see very high uptake of vaccines at employers with vaccine mandates, and a relatively small number of employees who will leave their jobs to avoid vaccination,” said Jeff Levin-Scherz, MD, population health leader at Willis Towers Watson. “Employers have played an important role in protecting their employees and the community. The majority already offer paid time off for vaccination and for adverse effects from the vaccine — as will now be required by this Emergency Temporary Standard.”
Some employees may be entitled to reasonable accommodation from their employer, absent undue hardship, due to a medical condition or sincerely held religious belief. Stakeholders have until 30 days after the date of the rule's publication to submit public comments.