Firm shares insights on vaccine mandate

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Amy McCulloch. Courtesy Lockton Companies

Following the Dec. 17 decision of a federal appeals court to lift the pause on President Joe Biden’s vaccinate-or-test mandate, a local human resources consultant said employers should proceed with compliance until further notice.

Amy McCulloch — strategic consultant, benefits and human capital for Lockton Companies Grand Rapids — recently spoke to the Business Journal about the mandate issued by President Joe Biden’s administration that private-sector companies with 100 or more workers must require their employees to be fully vaccinated against COVID-19 or be tested for the virus weekly and wear masks on the job.

To provide employers with sufficient time to come into compliance for the mandate that initially was paused in late November and, as of Dec. 17, was back on after federal appeals court panel ruling, OSHA said Dec. 18 it will not issue citations for noncompliance with any requirements of the emergency temporary standard (ETS) before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

In the 28 states and U.S. territories that enforce OSHA regulations, including Michigan, the rule will cover public and private employers, affecting about 84 million U.S. workers.

Biden administration officials estimate the mandate will save 6,500 lives and prevent 250,000 hospitalizations over six months.

Gov. Gretchen Whitmer and Michigan Attorney General Dana Nessel said they support the vaccine mandate. Twenty-seven Republican-led state governments so far have come forward with their intent to fight the mandate. The Supreme Court of the United States (SCOTUS) is scheduled to hear oral arguments on the emergency applications to re-stay the OSHA mandate on Jan. 7, determining whether the government should be able to enforce the federal vaccine mandates while the underlying litigation challenging them is still ongoing.

Before the pause in November, employers were asked to submit a written policy to OSHA by Dec. 6 on whether they choose option A of the ETS, requiring all employees to be vaccinated, or option B, the weekly testing and daily masking alternative. Employers also were asked to determine the vaccination status of all their employees — with documentation — and create a roster of all employees and their vaccination status for OSHA.

For employers who opted for the vaccination mandate, employees initially were to be vaccinated by Jan. 4. For employers that chose the test and mask option, weekly COVID tests for unvaccinated employees were to begin Jan. 4.

After the stay, then with the Dec. 17 ruling to lift the pause, employers were advised to continue to prepare for compliance by Jan. 4 while awaiting further news from SCOTUS.

Enforcement

According to a November explainer issued by the Associated Press, OSHA said it would fine companies up to $13,653 for each violation of the mandate, enforcing the new rule largely by relying on whistleblower complaints and limited spot checks.

In addition to collecting proof of employee vaccinations and keeping records, as noted above, employers were asked to prove unvaccinated employees have taken tests approved by the Food and Drug Administration, and that the tests are properly administered, the AP wrote.

The options

One caveat in the initial OSHA language would allow employers to develop and implement partial mandatory vaccination policies that would apply only to some workers and not others.

An example might be a retail corporation employer who has a mixture of staff working at the corporate headquarters, performing intermittent telework from home and working in stores serving customers,” OSHA wrote in Section 3B of its guidance. “In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores) and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework).”

McCulloch said in November she believed employers’ choices about which option to follow will be based on “what is going to cause the least amount of disruption” among their employees, and that would vary by industry.

“For example, I have a client that is a large specialty physician group, and they’re leaning toward doing the vaccination mandate. In large part, that’s due to their nature of work, and they already know that the majority of their employees are vaccinated … and they don’t believe that requiring the vaccination mandate will have a significant impact on their retention efforts,” she said.

On the other hand, manufacturers in rural areas might have larger numbers of unvaccinated workers, and those employers fear losing their talent if they choose a vaccine mandate, she said.

McCulloch said there are pros and cons for both options. The biggest con for the vaccine mandate is the potential impact on employee retention and the fact that employers must provide additional paid time off for employees to get vaccinated and to recuperate from side effects.

She said the biggest con for the test/mask option is the red tape involved with testing. Employers either must choose an offsite vendor, administer the testing in the workplace by staff or a contractor, or provide or have employees buy over-the-counter kits and take the test under the supervision of a proctor. All three options have a monetary cost and would require weekly documentation for each employee.

Exemptions

As written, the ETS does not apply to employees who work alone, 100% at home or 100% outdoors.

Whichever option employers choose, testing/masking or the vaccination mandate, they also would still need to provide accommodations for employees who can claim medical, religious or Americans with Disabilities Act (ADA) exemptions.

Paula Day, vice president, director HR compliance consulting for Lockton Companies, said in November the religious exemption was expected to be a “hot topic,” and whether employees qualify for it depends on a long list of factors determined by the Equal Employment Opportunity Commission. A primer on those qualifications is here.

McCulloch said as she sees it, an employee would need to have “a track record of consistency with their religious beliefs” to qualify for the religious exemption.

“I take that to mean that if vaccinations, immunizations or certain medications are against their religion, then they would have to prove they haven’t deviated from that conviction in the past,” she said. “In my opinion, that may make it difficult for people to qualify for the religious exemption.”

She said she advises all her clients to seek legal counsel on whether their employees’ requests for exemptions meet the required standards.

— Information from The Associated Press contributed to this report.

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