| Nov 08 2021

COVID-19 Vaccinations and Testing: Key Decisions You’ll Need to Make

Dorian Z. Smith
Partner, Mercer’s Law & Policy Group
Stephanie Henkenius
Principal, Mercer’s Center for Health Innovation and the US Healthcare Reform team
Beth Umland
Director of Research, Health, Mercer

The Occupational Safety and Health Administration (OSHA) posted an Emergency Temporary Standard (ETS) mandating that all private employers with 100 or more employees ensure their employees are COVID-19 fully vaccinated before entering the employer’s worksite. Alternatively, at the employer’s choice, employers may allow  unvaccinated employees to come to the worksite if they wear an approved face covering and produce a negative COVID-19 test at least weekly. 

Employers must comply with most requirements by December 6, and with the optional testing requirements by January 4. 

Here are some key decisions you’ll need to make:

  1. ETS applicability. Determine whether your organization is subject to the ETS. It only applies to private employers with 100 or more employees. Some public sector employers may be subject to OSHA-approved state plans. Separate vaccination guidance exists for federal contractors/subcontractors and certain healthcare providers.

  2. Vaccination tracking. Assess your ability to track employee vaccination status in-house. If you need additional support, there are several vendor options on the market but with the Dec. 6 compliance date for the tracking requirement quickly approaching, you’ll want to start your search immediately.

  3. Optional alternative to vaccination. The ETS allows (but does not require) employers to offer employees weekly testing and wearing a face covering as an alternative to being fully vaccinated in order to return to the worksite. You’ll need to decide whether you’ll allow this alternative by Dec. 6. While offering an alternative to vaccination might be easier from an employee relations perspective, tracking testing status will add administrative complexity. You may also decide to offer this alternative only to those requesting medical or religious exemptions. If you don’t offer it to any employees, remember you must provide some other reasonable accommodation, absent undue hardship, for employees with disabilities or a sincerely held religious belief, practice, or observance that conflict with the vaccination requirement.

  4. Testing administration and tracking. The complexity of this optional alternative, should you choose to offer it, means there is much to accomplish between now and the Jan 4 compliance deadline. Considerations include the tests you will accept; the timing of when employees will test and retest; who will pay for the testing (employers generally may pass along the cost of testing to employees, unless prohibited by other laws, regulations, or collective bargaining agreements); and, if applicable, who will observe/proctor self-administered and self-read tests. You’ll also need to consider the availability of testing in your area – testing is still in short supply in some geographies.

  5. Paid time off administration. Employers must offer up to four hours of additional paid time off at the employees’ regular rate of pay, including travel time, per vaccine dose to allow employees to be vaccinated, and reasonable time and paid sick leave to recover from side effects experienced after each vaccine dose. Consider how you’ll track these additional paid time off and paid sick leave requirements and work with your payroll department/vendor to ensure employees are paid accordingly.

  6. Workplace policies and procedures, communications, recordkeeping and reporting. The OSHA rules will require updates to your internal policies and procedures, new disclosures to employees, maintenance of vaccination records, and reporting to OSHA in certain instances. Ensure all internal stakeholders are engaged in making the needed revisions before the Dec. 6 compliance deadline. When it comes to communications, align your plan to your vaccination strategy. Determine how you will engage your leaders and equip them with the resources they need to support the strategy. Lead with the facts but anticipate emotion and resistance. And most importantly, listen to employees and adjust communication plans in response.

  7. Staffing and employee relations. The short timeline for compliance will create additional staffing pressures on top of what may exist currently. Determine how you’ll manage time off for employees to receive the vaccination and whether you have adequate staffing to track and administer all the requirements set forth in the OSHA ETS. Do you know how you’ll handle any staff turnover that may occur? Knowing some employees will support the vaccination mandate and others will oppose it, how will you equip your leaders to manage any employee relations issues that may arise?

This is a very busy time of year for employers and the new OSHA rules are just one of many compliance requirements you are facing. Presuming you have limited capacity to devote to compliance requirements in Q4, the precursor to all these considerations may be resetting priorities and assessing the risks associated with any changes. The good news is that there are resources available to support your compliance efforts. You don’t have to go it alone.

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