What’s Going On?

On October 28, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released some information on an emergency temporary standard (ETS), which has been commonly called the Vax-Or-Test Rule. Anticipation was looming until the full report was published on November 5, 2021. A core component of this release was a requirement that covered employers must implement and enforce a policy that requires all employees to become fully vaccinated against COVID-19 by January 4, 2022 or require weekly testing. The term “covered employer” means, under this rule, private sector employers with more than 100 employees (full and part-time) and state and local governments in the 22 OSHA-approved State Plans.

Immediately after the rule came out, there were various legal challenges to it. On November 6, 2021–just one day after the full report came out–the Fifth Circuit Court of Appeals temporarily halted the mandate. This means that while the Court reviews its legality of the rules and the challenges to it, the rule cannot go into effect. The Biden Administration is confident the rule will survive all challenges and be in full effect in the near future. As with all things, there is much more to the rule than that.

What’s in the Rule?

Some of the most notable requirements for employers are as follows:
Determine the vaccination status of each employee along with obtaining acceptable proof of vaccination status from vaccinated employees and keeping such information in an employee roster.
Require prompt notice of when an employee tests positive for COVID-19, regardless of vaccination status, including removing the employee from the workplace and not allowing the employee to return until certain criteria are met.

Ensure each employee who is not fully vaccinated has a weekly test (if they are in the workplace for at least one day a week) or within seven days of returning to work (if they have been absent from the workplace for more than seven days).

Ensure that each employee, who is not fully vaccinated, wears a face covering when indoors and occupying a vehicle with another person for work purposes.

Employer’s Must Enforce Vax Mandate on Employees

Provide up to four hours of paid time to get the vaccination and “reasonable” sick time to recover from side effects of the vaccine.

Employers are not required to pay for testing or face coverings for employees. However, there is no stipulation requiring OSHA or any other federal or state government entity to do so either. When looking at other laws, regulations, and so on, it is likely that employers will bear the cost in the long run. It is worth mentioning that employees who are fully remote or work fully outside are exempt from the Vax-Or-Test Rule.

This issue is a double-edged sword. On one end, it is propelling the country back to as normal as life was before the pandemic. People will feel more comfortable going out, stimulating the economy, and overall enjoying life if they know there are mandatory practices in place to keep them and their families safe. On the other end, people do not want to be forced to make a decision about their bodies without sufficient information on the long-term effects of the vaccine. Not only for that reason, many are calling it an invasion of privacy and unconstitutional on the businesses, in addition to forcing them out of a job (which causes more societal issues than we can get into right now).

 Employer’s Must Enforce Vax Mandate on Employees

So, What Does This Mean?

In short, a lot. There are good and bad implications that will be more readily transparent once there is a clear answer on the rule. Although this is moving quickly through the court system, we shouldn’t expect any definite ruling in the coming days and weeks–not until the Supreme Court weighs in, the rest of the country will be on standby. There are a few action items, given by an article from the National Law Review, on what employers can do now to assess their own situation and potentially comply with the rule:

  • Determine if your company is a “covered employer” under ETS standards.
  • Determine the vaccination status of your workplace.
  • Establish a plan to implement weekly testing.
  • Prepare a “Vax-Or-Test” policy.
  • Prepare an efficient communication plan.
  • Prepare to process and document requests for exemptions from the vaccine mandate.
  • Establish procedures to report COVID-related deaths and hospitalizations that are in compliance with the ETS documentation process.

Another honorable and more immediate mention is the Center for Medicare and Medicaid Assistance (CMS) announcing their own rule for workers at health care facilities, participating in Medicare and Medicaid programs, to be vaccinated. As we know, there is already a shortage in the healthcare industry and this promulgation has made the situation more difficult. Agency nursing placements are on the rise, but as we know, that is not a permanent fix.

How do you feel about OSHA’s Vax-Or-Test Rule? Should it be fully enforced or are the federal courts doing a good thing by blocking its current enforcement? Although applicable to larger companies and businesses, there is talk to extend this rule to small businesses. Is this something that you think your business can handle now, in the future, or at all?

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