An emergency temporary standard is being developed to help implement the Biden administration’s COVID-19 vaccine requirement for employees with 100 or more employees, covering more than 80 million private-sector workers.
George Ingham, partner in the employment law practice at Hogan Lovells, expects the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) to be a “soft mandate,” meaning employees can choose to receive a COVID vaccination or undergo weekly COVID testing. Federal workers and contractors that do business with the federal government face a “hard mandate,” meaning vaccination is a condition of employment, unless workers have a religious or medical reason.
Businesses that don’t comply with the ETS can face fines of up to $14,000 per violation, according to the White House’s Sept. 9 release. Ingham anticipates a long wait for OSHA’s guidance and also foresees various legal challenges to the guidance once it’s released.
There are also lingering questions from employers based on what is expected to be included in the guidance. For instance, the Biden administration’s announcement indicated employers will have to give workers paid time off to get vaccinated or recover from any side effects of getting vaccinated, which might prove too burdensome for some employers, depending on industry. Additionally, will employers bear the full responsibility of paying for testing and what are the wage-and-hour implications for non-exempt workers as it relates to COVID testing?
There is some clarity, however, as it relates to remote workers.
“OSHA has indicated that people who are fully remote workers are not going to be [included as part of the mandate],” Ingham said. “For some employers, that will be significant. If they’re not ready to implement a vaccine mandate, they might continue to delay their office opening to buy a little more time.”
Best Practices for Implementation
The top priorities for most organizations in the COVID-19 era has been business continuity and maintaining a safe and healthy workplace. Since COVID vaccines were released, many employers have encouraged their employees to get vaccinated to expedite a return to the office. Others have put incentives in place to entice employees.
There have been two tipping points along the way, said Karen Frost, vice president of health strategy at Alight Solutions. The first being the FDA’s approval of the Pfizer vaccine in August, which Frost said greenlit immediate action from some employers.
“We saw interest employers increase dramatically in a surcharge for lack of being vaccinated or strong incentives for getting vaccinated,” Frost said. “The president’s vaccine mandate/plan actually paused many of those conversations and employers are now looking at how they comply, can they comply and do they need to comply with the president’s plan?
“We’ve seen some employers stick with the incentive or surcharge approach and some go down the compliance path as well.”
As Frost alluded to, several large employers have already implemented similar requirements for their workers and this new vaccine mandate will likely embolden other employers that were on the fence about enforcing a vaccine requirement, said Mark Neuberger, counsel and litigation lawyer at Foley & Lardner LLP.
“The comprehensive actions taken by President Biden on Thursday (Sept. 9) dropped the checkered flag on employers entering the race against COVID,” Neuberger said. “Any employer who was thinking about mandating the COVID vaccines for its employees just received the ultimate cover.”
While some employers might use the Biden administration’s mandate as cover to implement a hard mandate, others will stick with OSHA’s ETS that is expected to be a soft mandate. The composition of your workforce should dictate which route you take, Ingham said. If a majority of your employee base is already vaccinated, implementing a hard mandate could make sense. If, however, less than 50% of the workforce is vaccinated, then sticking with OSHA’s soft mandate might be more practical.
“It’s really critical to assess what your workforce is and what your workforce’s attitudes are toward vaccination and what kind of work your workers do,” Ingham said. “That’s a starting point before jumping in.”
The next step ahead of implementation is determining the different burdens of a hard or soft mandate. With a hard mandate, Ingham noted, employers have to accommodate for religious and medical exceptions. With a soft mandate, employers will likely incur the cost of paying for COVID testing, which can get complicated if a good chunk of the workforce is non-exempt.
There’s litigation risk with those factors as well, which is why any policy put into place should be vetted and then applied consistently.
“It’s important to have a good process so you can consider these requests and determine whether they should be granted or denied and then apply it consistently so you avoid potential claims of discrimination,” Ingham said.
The final piece of this puzzle, of course, is workforce culture. While it’s important employers maintain a safe and healthy work environment and comply with these new requirements, it’s also critical to ensure it doesn’t disrupt your employee experience.
The economic recovery from COVID-19 lockdowns has led to a tight labor market and a significant uptick in workforce movement. So while there’s an air of stringency around these vaccine requirements that can’t be avoided, it’s important for organizations to be transparent about their decision-making process and ensure other areas of the workforce experience are maximized to retain workers and maintain productivity.
“Employee morale issues also need to be managed,” Ingham said. “You have to understand, you’re going to have some employees who are pleased with this and some who are not. You’ve got to have clear communication with your workforce and make people understand why you’re doing what you’re doing and treat people fairly and consistently. It’s crucial because we need workers to stay in their jobs and stay productive.”