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OSHA’s COVID-19 Vaccine Mandate: What Employers Need to Know

On November 4th, 2021, OSHA released its high-anticipated emergency temporary standard (ETS), commonly referred to in the press as the vaccine mandate. The general aim of this new standard has been known for some time, but, with the specific details finally available, employers are rushing to ensure that they are prepared to meet its requirements. The foundational argument of the ETS is that OSHA considers COVID-19 infection to be a grave danger to employees, so they’re establishing minimum vaccination, testing, and face covering requirements to address this. 

Unsurprisingly, this new standard has been met with several legal challenges, but employers cannot afford to wait for an order from the court of appeals to begin preparing for compliance. Here’s what you need to know:

Key Deadlines

The ETS technically went into effect immediately upon its publication in the Federal Register on November 4th, however, enforcement of the standard doesn’t begin until December 6th, 2021. On that day, all provisions of the ETS come into effect except for the testing requirement (more on this below). The testing requirement will be enforced on January 4th, 60 days after publication. 

Which Employers are Impacted?

The standard applies to all U.S. employers with 100 or more employees. OSHA’s rationale for the 100-employee threshold is that larger employers “have the administrative capability to implement the standard’s requirements promptly” but are less confident that smaller employers can do so without disruption. This means that two-thirds of all private sector workers in the nation, including those working in the nation’s largest facilities where the deadliest outbreaks occur, will be better protected from infection. 

The only 100+ employee workplaces exempted from this policy are those already complying with one of two similar standards: 1) the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, or 2) the Healthcare Emergency Temporary Standard.

Some individual employees at these companies may be exempt, however. This includes employees that don’t report to a workplace where coworkers or customers are present, as well as employees who exclusively work from home or outdoors.

Employer Vaccination Policies

All employers are required to develop and implement a policy that either requires all existing and new employees to be fully vaccinated, or allows each employee to choose between vaccination or providing proof of weekly testing and wearing a face covering. 

Employers are also required to determine the vaccination status of every employee and keep “an acceptable proof of vaccination and roster of each employee’s vaccination status”. These records must be kept and considered as employee medical records for the time that the ETS is in effect. 

OSHA has provided sample policies on its website for reference. 

What Counts as “Acceptable Proof of Vaccination”?

Here is the list provided by OSHA:

  • Record of immunization from a health care provider or pharmacy
  • Copy of US CDC COVID-19 vaccination record card
  • Copy of medical records documenting the vaccination
  • Copy of immunization records from a public health, state, or tribal immunization information system
  • Copy of other official documentation containing type of vaccine, date(s) of administration, and name of health care professional or clinic administering the vaccine
  • Signed and dated attestation ONLY where employee has lost or is otherwise unable to produce other acceptable proof

What are the Requirements for Unvaccinated Employees?

Employers that opt to implement a policy with a testing option must require each non-exempt employee who is not fully vaccinated to (1) be tested at least once every 7 days, and (2) provide proof of test results to the employer no later than 7 days after they last provided a test result. 

In some instances, an employee might be away from the workplace for longer than a week, and they are not required to provide test results during that time. However, they must be tested within a week of returning to the workplace and must provide the results of that test upon return. 

Employer Support for Vaccination and Testing

The ETS requires employers to provide employees up to four hours of paid time off to receive each vaccination dose, as well as reasonable time and paid sick leave to recover from any side effects experienced. 

Under the ETS, employers are not, however, required to pay for any costs associated with testing, although they are not prohibited from doing so. 

Exemption from Testing

The only instance provided by the ETS where an unvaccinated non-exempt employee will actually be exempt from complying with their company’s testing policy would be if they test positive for COVID-19 or are positively diagnosed by a licensed health care provider. In that situation the employee would be exempt from regular testing for 90 days. 

Can State or Local Laws Overrule the ETS?

Barring a permanent injunction or Supreme Court ruling, the ETS is written specifically such that it preempts any state or local laws.

Do you know how many of your employees are struggling with caring for an aging parent? It’s probably more than you think

What if I told you that there is a hidden crisis affecting 1 in 5 Americans, causing millions to leave the workforce earlier than expected, hindering productivity, all while most employers remain out of touch with what is happening? That is precisely the conclusion of a report by Homethrive on the results of their 2021 survey investigating the impact and difficulties of employee caregiving. 

Employees are engaged in a precarious juggling act, balancing the pressures of work, finances, healthcare, childcare, and, for 53 million Americans, the care of their aging loved ones. As a culture we have come to tacitly accept that, fairly or not, the burden of elderly caregiving falls entirely upon the individual. As a result, affected employees are left to make an impossible choice between their career aspirations and being there for their loved ones when they need them the most. This is a problem that is expected to grow, as 72 million baby boomers approach the average age of an elderly care recipient at 70 years old.

Homethrive surveyed hundreds of adult caregivers to take a closer look at the impact this is having on their employment. While individual employees may always bear the brunt of the responsibility, companies are also suffering losses in productivity and higher turnover as a result. 43% of respondents said that they are distracted, worried, or focused on caregiving – and not their jobs – at least 5 hours each workweek, while 20% reported experiencing this for 9 hours or more each week. 1 in 3 reported that their supervisors had noticed an impact on their job performance either from changing work habits or from being noticeably stressed. Finding a way to support these caregivers is the compassionate thing to do, but it also makes a lot of business sense.

Perhaps the most surprising finding from Homethrive’s report was how out of touch employers seem to be in the face of this crisis. More than half of respondents said that their supervisor is not as supportive as needed regarding their outside-of-work caregiving responsibilities. One reason employers aren’t seeing the impact here is that they aren’t looking, as 40% reported that their supervisor wasn’t even aware of these additional obligations. 

Most employers care, they just need to do more to understand this need among their workforce and provide benefits that support them. While the vast majority of caregivers are receptive to the idea of their employer offering a benefit to help address this challenge, most companies are not yet offering anything in terms of resources, guidance, or support for caregiving. Choosing the right caregiver benefit should be near the top of the priority list when considering the “must-haves” in a modern benefits portfolio.

To learn more about the impact of elderly caregiving on employment, check out Homethrive’s report here. 

Compensation Strategy is More Important Now Than Ever Before— Don’t Let Yours Go Stale

It’s never been a good idea to allow your organization’s compensation strategy to go stale, but today’s economic upheaval has made this subject a focal point in a historically competitive job market. 

If your organization hasn’t already felt the effects of the current labor shortage, you’ve certainly heard about it. Resignations are currently at the highest rate ever recorded, up 13% compared to pre-pandemic levels. According to the Labor Department, most industries across the nation currently have more job openings than there are people with prior experience in that sector.

At the end of the day, employees often weigh their level of compensation above any other factor in their employment decisions. An organization can have an incredible culture, mission, and benefits package, and still hemorrhage talent if pay isn’t keeping pace with the market. Most employers think their employees are fairly compensated (73% of them according to data from PayScale). Meanwhile, 64% of employees report that they’re being paid below average market value. It isn’t enough to trust your gut on this. 

Aside from staying competitive through this economic turmoil, there are a myriad reasons for organizations to clear off that dust, reasons that have been with us for a while. Poorly maintained compensation strategies can leave even the most well-meaning of organizations susceptible to fines and/or lawsuits if they’re found to be discriminating in pay on the basis of race, gender, or any other protected class (intentionally or not). Productivity can suffer from poorly devised or outdated incentive programs. Inefficiencies in timekeeping can reduce revenue. The list goes on and on, and they can all add up to impact engagement, retention, and ultimately your bottom line. 

Organizations are often reluctant to dive into these potential issues because they’re overwhelmed by the number and complexity of things that need to be taken into consideration. What’s needed is a little clarity and guidance. 

We’ve taken the time to put together a Compensation Strategy Checklist that breaks all of this down into its component parts: policies, strategy, management, and compliance. This checklist will allow you to quickly assess your situation so that you can either act on areas of weakness, or rest easy knowing that everything is good to go.

Download the Complete Compensation Strategy Checklist Today!

Over 100 Employees? COVID-19 Vaccine Requirements are Coming

  • Ensure that 100% of their workforce is vaccinated against the COVID-19 virus, with any of the emergency or fully FDA-approved vaccines; OR
  • Receive a weekly negative COVID-19 test result from all unvaccinated employees prior to coming to work.

In addition to this vaccination and/or weekly testing requirement, employers must also provide paid-time off benefits for the time needed to get tested and post-vaccination recovery, if necessary. OHSA should release its ETS in the coming weeks, outlining the specifics of this new ruling and how to comply with its requirements, including information on payment responsibility for vaccinations and testing and the timeline for implementation.

There are many compliance concerns raised by this plan under ERISA, HIPAA, certain wellness program rules, and other regulations that will need to be contemplated by employers. Upon OSHA’s issuance of the ETS, we will provide further guidance and information on compliance with the requirements. We also recommend you reach out to your legal counsel for assistance. If you are a large employer and would like to discuss the above requirement in more detail or if you are a healthcare entity, federal contractor, or federal government employer and would like information on how the other pieces of this plan apply to you, please visit https://www.whitehouse.gov/covidplan/ or contact Launchways directly for additional HR and compliance support.

COVID “Long-Haulers” May Now Qualify for FMLA and ADA Protection

On July 26th, the 31st anniversary of the Americans with Disabilities Act (ADA), President Joe Biden announced that individuals coping with long-term symptoms from COVID-19 may be eligible for disability protections under the ADA and the Family and Medical Leave Act (FMLA), so what does this mean for employers?

Health experts are still learning about “long-COVID”, officially dubbed Post-Acute Sequelae of Sars-Cov-2 Infection, and the medical community’s understanding of the condition is continuing to evolve as more information comes in. The CDC website lists the following as the most common post-COVID symptoms: 

  • Difficulty breathing or shortness of breath
  • Tiredness or fatigue
  • Symptoms that get worse after physical or mental activities
  • Difficulty thinking or concentrating (sometimes referred to as “brain fog”)
  • Cough
  • Chest or stomach pain
  • Headache
  • Fast-beating or pounding heart (also known as heart palpitations)
  • Joint or muscle pain
  • Pins-and-needles feeling
  • Diarrhea
  • Sleep problems
  • Fever
  • Dizziness on standing (lightheadedness)
  • Rash
  • Mood changes
  • Change in smell or taste
  • Changes in period cycles

In his July 26th announcement, Biden said that “many Americans who seemingly recover from the virus still face lingering challenges like breathing problems, brain fog, chronic pain and fatigue. These conditions can sometimes…rise to the level of a disability.” 

Employers are advised to treat all requests for accommodation or leave involving long-term COVID-19 symptoms in the same manner they would for any other non-obvious impairment or disability. 

If an employee is seeking FMLA leave – either intermittent or as an interval of time, employers should take the following steps to decide how to proceed:

  • Determine if the employer covered by FMLA
  • If so, determine if the employee qualifies for FMLA. Consider that the employer must have 50 employees within 75 miles of the employee’s worksite, and the employee must have been employed at least 12 months and must have worked a minimum of 1250 hours in the past 12 months. 
  • Provide the employee with a Notice of Eligibility and Rights & Responsibilities, Form WH-381, even if they are not eligible for FMLA leave. 
  • If the employee is determined to be eligible for FMLA leave, the employer should request healthcare certification showing that the claimed disability qualifies the employee for FMLA protection. 
  • Employees seeking leave due to their own symptoms should be provided with Form WH-380-E, and employees seeking leave to care for a family member should be provided with form WH-380-F
  • A Designation Notice, Form WH-382, should be used to either denominate the leave as FMLA leave or to serve as notice to the employee that the leave is unapproved or additional information is required. 

If the individual is seeking ADA Accommodations for long-haul COVID-19 symptoms, the employer should consult with the individual to determine what their exact limitations are and what accommodations are being sought. Keep in mind that the ADA requires the employer to make reasonable accommodations for employees, as well as applicants for employment, who have disabilities. 

The ADA does not provide a checklist of conditions that are covered, so instead the employer will need to conduct an individualized assessment to determine if the person has a disability as defined by the ADA. In this context a disability is defined as any impairment that substantially limits major life functions. 

Guidance issued by the Department of Justice (DOJ) and Health and Human Services (HHS) on July 26th stated that the phrase “substantially limits” should be interpreted broadly and should not require in-depth analysis. 

The employer should then request the individual to have their healthcare provider submit written confirmation of:

  • The extent that a disability will substantially limit the individual’s major life functions, including the nature of the disability, its severity, and the anticipated duration of the disability. 
  • Their assessment of the individual’s ability to perform the essential functions of the position, with or without reasonable accommodation. 
  • What accommodations the provider believes should be provided that would allow the individual to perform the essential functions of the position safely. 

If it becomes clear that the individual does have a disability, the employer should continue to engage with the individual to determine appropriate accommodations. The individual is not granted the ability to dictate which accommodations are provided under the ADA, but it is in the best interest of all parties that they reach an agreement on this subject. 

Employers should also keep in mind that reasonable accommodations are not required under the ADA if they would cause an undue hardship on the business, and that long-term effects from COVID-19 don’t always qualify as a disability under the ADA. 

It is important employers fully understand the scope of the laws’ coverage in order to be prepared to handle any potential situation. No matter the outcome, employers should always carefully document every step throughout this process and be sure to communicate clearly with the individual seeking accommodations.