According to global experts, COVID-19 is here to stay. Scientists are telling the world to prepare for a new norm with Covid-19, liking its periodic mutations to the flu virus. In response, the Biden administration has taken significant steps towards creating safety measures to slow infection rates. One of these is a COVID-19 vaccine mandate for large companies.
The mandate, which was issued by the Occupational Safety and Health Administration (OSHA), will disrupt the compliance landscape for thousands of companies in the United States. And, OSHA isn’t the only regulatory body involved. The mandate is already causing a stir at the Equal Employment Opportunity Commission (EEOC), which is charged with enforcing civil rights laws.
The mandate has prompted mixed reactions among America’s employers. Still, almost all employers have the same question: How is this mandate going to work?
What is the COVID-19 Vaccine Mandate?
The COVID-19 vaccine mandate is an administrative rule issued by OSHA. The rule mandates that companies with 100 employees or more either:
- implement a policy requiring COVID-19 vaccinations for employees, or
- implement weekly tests and face mask requirements in the workplace.
What About Companies with 98 Employees?
Companies with 98 employees are not subject to the mandatory vaccination rule. However, if the company is currently understaffed, it should consider creating a vaccine policy.
When Will the Mandate Go into Effect?
OSHA issued the vaccine mandate on November 5, 2021, as an Emergency Temporary Standard (ETS). Unlike regular OSHA standards, ETS rules take effect immediately until replaced by a permanent standard.
OSHA vaccine requirements and testing requirements are scheduled to go into effect on January 4, 2022. Other aspects of the rule, like mask requirements, go into effect on December 4, 2021.
Litigation may delay the mandate, but companies should prepare for a policy.
Although scheduled to take effect in weeks, the vaccine mandate is now subject to litigation in federal court. On November 12, 2021, the Fifth Circuit Court of Appeals ruled that the vaccination mandate must not be enforced pending litigation. Around the same time, multiple states filed cases also challenging the mandate.
To resolve these lawsuits, a multidistrict panel in Washington D.C. was tasked with choosing which federal court would hear these cases. To choose the court, the panel used a lottery system. Now, the Sixth Circuit Court of Appeals will determine whether the vaccine mandate will move forward.
Although the mandate is caught up in litigation, the White House is urging companies to move forward with a policy. If the mandate does move forward, companies need to be ready to implement a policy and an employee vaccination tracking program.
OSHA’s Role in COVID-19 Prevention
OSHA is the primary federal administrative body that enforces workplace safety. Located within the Department of Labor, OSHA’s task is to implement rules and standards to maintain employee safety and health. It also provides education, training, and assistance.
OSHA Vaccine Requirements
According to OSHA’s vaccine rule, employers must implement a vaccination policy. This policy must require employees to either become fully vaccinated against Covid-19 or wear a face covering.
Additional requirements per the mandate include:
- Weekly Testing for Workers Who Opt-Out of the Vaccine. Workers who choose not to become vaccinated must be tested for COVID-19 every week. OSHA has also provided testing guidelines.
- Paid Time Off. Employers must give employees paid time off (PTO) to get vaccinated should they need to during work hours.
- Paid Sick Leave. Employers must give employees paid sick leave to recover from any vaccine side effects.
- Employee Vaccination Tracking. Employers must establish an employee vaccination tracking plan to ensure accurate vaccination records, such as vaccination cards.
- Inform and Remove Employees Diagnosed with Covid-19. Employers must require employees who test positive for COVID-19 to inform the employer promptly. The employee must then be removed from the workplace.
To be compliant, companies will have to create an employee vaccination tracking, testing, and removal plan. Employers can also implement a policy that excludes employees working from home, and employees not subject to the mandate.
OSHA’s Vaccine Requirements and EEOC Compliance
The EEOC enforces several employment discrimination laws. Two of these are Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). Among other classes, Title VII prohibits employment discrimination based on religion. The ADA prohibits employment discrimination based on disability.
Employers with vaccination policies have received employee complaints alleging that the policy violates their rights under Title VII and the ADA. Some employees assert that the policy violates their sincerely held religious beliefs. Others assert that it discriminates against them based on disability status. Many of these employees have requested reasonable accommodations.
Reasonable Accommodations Under Title VII and the ADA
Under Title VII and the ADA, employees with sincerely held religious beliefs and employees with disabilities can request a reasonable accommodation. Although a reasonable accommodation can’t impose an undue hardship on the employer, the process must be collaborative.
In the context of vaccines, a reasonable accommodation may be to opt out of the vaccine. Luckily for employers, the vaccine mandate addresses reasonable accommodations.
What the OSHA vaccine mandate says about Title VII and ADA accommodations:
The mandate addresses reasonable accommodations in paragraph (c), and also in a note to paragraph (d) of Section 1910.501.
Paragraph (c) (29 C.F.R. § 1910.501(c))
Paragraph (c) states that any mandatory vaccination policy must require vaccines or testing for each employee unless the employee is legally entitled to a reasonable accommodation. These employees must have “a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.”
Note to Paragraph (d) (29 C.F.R. § 1910.501(d))
The note to paragraph (d) states that employees may be entitled to a reasonable accommodation under Title VII or the ADA. The accommodation must not pose an undue hardship on the employer.
The note refers employers to the EEOC’s compliance guidance for Covid-19 safety. This guidance states that employers must still comply with federal civil rights laws while implementing safety measures against Covid-19. For example, an employer can’t discriminate in the way they choose who gets tested or when, or who gets PTO.
OSHA Vaccine Requirements and HIPAA Compliance
HIPAA regulations do not prevent companies from asking an employee for their vaccination status. The Department of Health and Human Services’ FAQ page explains how HIPAA does and does not apply to Covid-19 workplace policies.
How to Implement an Employee Vaccination Tracking Program
Even though the mandate is currently held up in litigation, companies should still prepare. Below are three key tips for employers looking to implement a vaccine policy that complies with OSHA’s vaccine mandate:
1. Invest in Employee Vaccination Tracking Software
To execute their policies, employers will need an employee vaccination tracking program. A program will keep a record of who is fully vaccinated, who is not, and who has requested an accommodation. A great employee vaccination tracking tool will automate tracking this information and keeping necessary records.
2. Be Proactive About EEOC Compliance
Company vaccine policies must comply with OSHA’s vaccine mandate and EEOC laws. They also need to work for the company.
Before drafting a policy and implementing a program, consider doing the following:
- Consult paragraphs (c) and (d) of OSHA’s vaccine rule before drafting your policy. Also, review EEOC’s Covid-19 compliance guidance.
- Create a communication plan for employees who may request an accommodation.
- Consider whether you need a separate policy and SOP for reasonable accommodations.
- Make sure your employee vaccination tracking software can process accommodation requests.
3. Consider Positive COVID-19 Tests
Although OSHA’s vaccine rule focuses on vaccination and testing requirements, the company’s tracking program should also address positive tests. The CDC has issued a Covid-19 FAQ for employers managing Covid-19 symptoms and positive tests in the workplace. This guidance provides recommended actions and timelines.
Introducing An All-in-One Immunization Tracking System
At CMS, we’ve launched an intuitive, automated, all-in-one employee vaccination tracking software tool. With our software, staff can complete the tracking process in under 3-minutes and communicate with staff via email or text. CMS’s immunization tracking system can also integrate with HRMS and HRIS software.
CMS’s vaccine tracking software also includes religious and ADA management capabilities to streamline reasonable accommodation requests.