Arkansas employers have grappled with decisions about whether to mandate COVID-19 vaccines. Soon, some employers will no longer have much choice.
On Sept. 9, President Joe Biden announced his new COVID-19 action plan, titled Path Out of the Pandemic, a sweeping push to vaccinate the unvaccinated. Among other things, it directed the Department of Labor’s Occupational Safety & Health Administration to issue a rule mandating that private employers with 100 or more workers require their employees to be vaccinated against COVID-19 or to produce a negative test result at least weekly before coming to work.
We don’t know when the rule will take effect, but Biden directed OSHA to issue a rare Emergency Temporary Standard, which will likely take some weeks to draft. Once OSHA publishes the ETS in the Federal Register, it will take effect immediately and remain in effect until a permanent rule is issued through the normal rulemaking process.
How Employers Can Prepare
Even without knowing all the details of the ETS, there are steps employers can take to get ready.
First, develop a proposed vaccine/testing policy and decide whether to mandate vaccines or allow for weekly testing. If employers plan to allow for weekly testing, it’s likely that employers will have to compensate hourly employees for the time they spend testing and reimburse all employees for the cost. Consider whether to provide on-site testing kits or vaccination.
It’s also important to determine how an employer will maintain vaccine status and test results in a confidential manner as well as manage requests for paid time off for vaccination and recovery time.
Second, it’s time to review and revise policies on employee requests for accommodation. Employers must provide reasonable accommodations to employees who cannot take the vaccine due to a disability or a sincerely held religious belief. Employers must engage in an interactive process with the employee as part of that request to determine whether they meet the criteria for an accommodation and what accommodation may be reasonable. Employers may request to verify an employee’s disability with the employee’s health care provider.
For religious exemption requests, verification may be trickier. Prepare to ask employees to explain their religious belief and why that prevents them from taking the vaccine. No accommodation is required for political beliefs or personal preference. For legitimate requests, determine what accommodations are reasonable, such as masking, social distancing or remote work.
Finally, strategize about how to handle employee pushback. If employers decide to mandate vaccines, they are only required to accommodate valid medical and religious exemptions. Employees who object to the vaccine but do not qualify for an accommodation may be subject to discipline, up to and including termination. Similarly, if testing is allowed, employees who refuse to comply with testing policies may be subject to discipline.
What We Don’t Know
Some questions remain unanswered. We know the ETS will apply to employers with 100 or more employees, but it’s unclear whether that calculation will be companywide or by location. We also don’t know to what extent remote workers will be covered. OSHA generally only has authority to protect workers from hazards at their work site. Workers who telecommute exclusively may not be included in the ETS, but workers who occasionally come to the office may. It’s also unclear to what extent employers will be asked to protect their workers against unvaccinated third parties who enter the work site, such as customers, clients or independent contractors.
The ETS will certainly be challenged in court and Gov. Asa Hutchinson has already expressed opposition to a federal mandate on private sector employers. It’s possible that a court may block enforcement of the ETS while legal challenges are resolved, but in the meantime, covered employers would be well served to prepare. The ETS is coming.
Read the president’s COVID-19 plan at whitehouse.gov/covidplan.
Attorney Amanda Orcutt concentrates her practice on representing employers in all matters of employment law, both as an adviser and an advocate. For information, contact her at 501-688-8880 or email@example.com.
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