The Latest on OSHA’s Vaccine-or-Test Mandate What Employers Need to Know

The Latest on OSHA’s Vaccine-or-Test Mandate: What Employers Need to Know

It’s the week before Christmas, and while some people are scrambling to finish their shopping, others are waiting in hours-long lines to get tested for COVID-19. Omicron, the most recent COVID variant to spread across the world, has upended holiday plans and back-to-workplace plans alike. 

And if keeping up with COVID news hasn’t given you whiplash, the Occupational Safety and Health Administration (OSHA)’s vaccine-or-test mandate might do it. 

Not sure what we’re referring to? Let’s get you up to speed. 

ICYMI: Timeline of Events for the OSHA Vaccine and Testing Mandate

In early September, President Biden announced a requirement for employers with 100 employees or more to mandate COVID vaccines or require weekly COVID testing. 

Nearly two months later, OSHA—the regulatory agency of the United States Department of Labor that sets and enforces workplace standards to ensure the safe and healthful working conditions of American workers—announced its Emergency Temporary Standard (ETS), otherwise known as the vaccine-or-test mandate. 

At the time, the OSHA rule would take effect January 4, 2022, and would apply to U.S. businesses with 100 employees or more. Despite being primarily known as a “vaccine mandate,” the rule would allow for employees to remain unvaccinated, but would require employees to provide a verified negative test to their employer on at least a weekly basis and wear face masks in the workplace starting December 5, 2021.

In addition, the rule allowed for exemptions, including for employees who are 100% remote, who perform their work exclusively outdoors, as well as those with certain medical conditions, disabilities, and religious affiliations that prevent vaccination. The rule did not exempt healthcare workers, however; they must be 100% vaccinated.

OSHA also announced penalties for non-compliance.

Since the announcement, there have been numerous stops and starts. 

On December 17, the Sixth Circuit Court of Appeals voted to lift the stay on OSHA’s Emergency Temporary Standard (ETS), otherwise known as the vaccine-or-test mandate.

And just this week, 27 states submitted their appeal to bring the ruling to the U.S. Supreme Court. 

What Should Small Businesses Do Now?

In a word: prepare. 

While the vaccine-or-test mandate applies to businesses with 100 employees or more, some small businesses have already started mandating testing to help mitigate the spread of the virus—and keep employees safe. 

And keeping your employees safe is especially critical as the virus continues to evolve. New variants, such as Delta and now Omicron, are reshaping the companies’ plans to bring people back to the office

Read more: COVID Is Adapting. Here’s Why Your Workplace Policies Need to, Too.

If you’re a small business (less than 100 employees) considering whether to mandate vaccines or test your employees weekly, here are a few things to consider:

  • Do your employees interact with the public on a regular basis, such as in the food and beverage service industry? 
  • Does your business work with or support a vulnerable population, such as in care homes?
  • Does your employee population primarily work remotely? Strictly on site? A mix? 

The answers to these questions—and consideration of the risks associated with operating your business, as well as who could be at risk (i.e., employees and customers)—can help you decide if requiring the COVID vaccine and/or testing is right for your company. 

4 Steps to Take to Implement a COVID Vaccine-or-Test Policy

So, your company’s decided to move forward with requiring employees to get vaccinated or test weekly for COVID. Now, you need a plan. 

Here are four steps to get started.

Step 1: Establish a COVID vaccine-or-test policy

Here’s where you think through and decide:

  1. Who needs to comply. Per Biden’s order, only those employees who are unvaccinated need to get tested weekly. However, if you don’t plan to mandate showing proof of vaccination, you could ask employees to voluntarily provide their vaccination status—or test everyone. Though, be sure to consider exemptions for employees who are 100% remote, who perform their work exclusively outdoors, as well as those with certain medical conditions, disabilities, and religious affiliations that prevent vaccination. 
  2. When employees will need to show proof of vaccination and/or when unvaccinated employees will get tested, including frequency (in this case weekly, per OSHA’s mandate) and dates. Be as specific as possible. 
  3. Where employees will get tested, e.g., at your workplace; at a company-approved testing facility; etc.
  4. What information (i.e., vaccination status and test results) will be shared—and with whom. Employees personal health information should be kept confidential, but in this case, a positive COVID test result requires immediate action. Managers need to be as informed as possible to make the best health- and safety-related decisions for their people. 
  5. Who will track vaccination and testing status. Will HR manage the execution of this policy? Managers? Is there a budget for an automated tracking tool? 
  6. Why you’re establishing a vaccine-or-test policy. Here’s where you tell employees why you’re establishing this new policy. Remember: transparency builds trust and a sense of belonging at work. 

Also, be clear on the consequences of non-compliance. Educate managers on how to handle situations where employees refuse to get tested, miss testing appointments, and so on.

Step 2: Communicate the vaccine-or-test policy to employees

Keeping your employees up to date on changing COVID workplace policies will help them feel safer and more engaged. Employees want to understand not only why policies are changing, but also how it affects them on a day-to-day basis.

Encourage leaders to talk to their people about the new requirement, ask about their concerns with returning to the office and/or continuing to work remotely, as well as check in on their mental health and well-being. 

Step 3: Maintain confidentiality

Per the U.S. Equal Employment Opportunity Commission (EEOC), any documentation or other confirmation that employees provide about their vaccination status or COVID test result(s) is considered medical information and must be kept confidential. Be sure to communicate this to employees, and let them know that HR will control access to the information and limit its use. 

Also, depending on where your business operates, the data could be protected under state law. Consult an employment law attorney to understand any pertinent legal obligations and risks. 

Step 4: Stay nimble

Every company has different needs and capabilities when it comes to maintaining business operations during a pandemic. Remind leaders that COVID workplace policies—and federal mandates—will likely continue to evolve. As such, managers should lead by example and be flexible to meet the changing needs of their team as well as the organization as a whole. 

Read more: Your CEO Wants to Mandate Vaccines. Here’s What to Do Next.

Don’t Go It Alone

We know staying on top of today’s ever-changing workplace can be a lot for a small HR team, especially if you’re a team of one. At Eddy, we help take the administrative tasks off your plate, so you can focus on taking care of your employees.

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