Employers Need to Start Preparing for Vaccine Mandates Now

You’ve seen the news: All employers with 100 or more employees will have to require their workers to be vaccinated or undergo at least weekly COVID-19 testing under President Biden’s COVID-19 Action Plan, which states that OSHA will be issuing guidance to this effect. These employers will also have to give workers paid time off to be vaccinated and to recover from any side effects of getting vaccinated. 

Certainly, employer vaccine mandates were already gaining momentum as employers looked for ways to increase vaccination rates among their workforce and create a safe workplace. Tactics included incentives, surcharges and mandates, and of those mandates had the most traction, especially following the FDA approval of the Pfizer vaccine. Now the question of whether to require vaccinations has been settled, giving way to a long list of questions about how to do it. 

All employers will face administrative challenges – and we’ll get to those later in the post.  Many, if not most, will also face resistance from at least some employees who oppose vaccinations, the idea of a mandate, or both. Employers that have not already begun laying the groundwork for a vaccine mandate will need to act swiftly.  Employee communication and engagement strategies, stakeholder feedback coupled with change management can do much to maintain morale and avert staff losses. Fortunately, there are now numerous examples of companies that have implemented vaccine mandates successfully; the roadmap is already in place.

In case you are still wondering whether this will definitely happen (and you’re not alone if you are), as a reminder, the President can drive policy changes without going through Congress as long as the policy can be carried out by the Executive Branch Departments, Agencies, Boards and Commissions. There are sure to be court challenges to the new rule. However, Federal courts have historically, and so far during the pandemic, affirmed the right of the Federal government and private employers to impose vaccine requirements, provided they offer reasonable accommodations to people who refuse the vaccine because of a disability or religious beliefs covered by the Americans with Disabilities Act or Title VII of the Civil Rights Act.

Who is required to do what, and by whom

The Labor Department’s Occupational Safety and Health Administration (OSHA) plans to issue an emergency temporary standard implementing the new requirement in the coming weeks. In addition to private sector employers, the president’s EO covers federal employees and federal contractors. The chart below outlines some of the requirements outlined in the EO and the federal agencies charged with issuing guidance. 

 

Applies to... Requirement Regulatory Guidance

Employers with 100+ employees

  • Employees must get vaccinated
  • Un-vaccinated employees must produce a negative test at least weekly
  • Employers must provide paid time off for for workers to get vaccinated and to recover from potential side-effects

Department of Labor’s Occupational Safety and Health Administration (OSHA). Published report indicates that guidance will be issued in “the coming weeks”

Federal workers and employees of federal contractors 

  • Employees must get vaccinated
  • Weekly test not an option

Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health

Health care workers in settings that receive Medicare or Medicaid reimbursement 

  • Requires healthcare workers be vaccinated in most healthcare settings that receive Medicare or Medicaid reimbursement

Centers for Medicare & Medicaid Services (CMS) plans to issue an interim final rule in October per an announcement the day the Plan was released

 

When will rules go into effect – and what should employers be doing now?

We expect the agencies to issues these rules with expediency and that they will go into effect, legal challenges notwithstanding.  Guidance will likely be issued within the next few weeks allowing time for implementation prior to enforcement.

There is a lot we do not, and will not, know until we see the rules. To begin with, President Biden’s plan definitely impacts the discussions on incentives and surcharges. As the focus shifts to mandates, we can learn from employers that have already worked through the challenges of administering their vaccine requirements. While we wait for the rules, we recommend you begin to do some scenario planning so you can react quickly. Here’s a list of questions to get you started:

  • How will you track vaccinated status? Start to plan for the process you will follow to collect and document vaccination status. Determine if you will need to hire additional staff or reallocate existing staff to manage the initial burden of collecting vaccination information. Consider project staffing needs on an ongoing basis.  If you need to hire a third-party, you may want to start evaluating vendors now.
  • How will you test for COVID-19? Think through the administration (self vs. clinician), collection method and location of the testing. And consider whether the employer or employee will pay for the testing if the government doesn’t.
  • How will you administer paid-time off to get vaccinated and recover from side effects? Think through the options of providing additional leave or requiring use of existing PTO. And determine if you want to put any limits on the amount of PTO an employee can take for vaccination and recovery from side effects.
  • How will you manage business continuity? Consider how to maintain adequate staffing levels during the period where the unvaccinated are getting vaccinated?

As we stated at the top of this post, the first and perhaps most important task ahead is developing an employee communication strategy. Manager training will be critical, to ensure managers are equipped to have helpful conversations with employees with questions, concerns, or strong feelings.

To help you think about how to implement these requirements in your organization, join us for a webcast on September 13th – Lessons learned from employee vaccine mandates – a panel discussion with leaders from Houston Methodist Hospital, the first healthcare organization in the US to mandate COVID-19 vaccines for their employees. They will share their internal and external communication strategy regarding the mandate, and lessons learned that impact employers in all industries, including accommodation process, change management and performance management.

 

Tracy Watts
by Tracy Watts

Senior Partner, National Leader for U.S. Health Policy

Beth Umland
by Beth Umland

Director of Research, Health, Mercer

Geoff Manville
by Geoff Manville

Partner, Mercer’s Law & Policy Group

Stephanie Henkenius
by Stephanie Henkenius

Mercer’s Center for Health Innovation and the US Healthcare Reform team

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