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Vaccine mandate: What employers need to know

Nov 19, 2021 4:30:02 PM

By now, you’ve most likely heard about the workplace vaccine mandate planned by the Occupational Safety and Health Administration (OSHA).  

Legal challenges aside – including the fact that the U.S. Court of Appeals for the Fifth Circuit has temporarily suspended the implementation of the mandate – employers need to prepare to have a policy in place and communicated to staff by Dec. 6.

Known as the Emergency Temporary Standard (ETS), it applies to employers with 100 or more employees, not including those covered by federal government contractor requirements or the previous healthcare ETS. In short, employers are obligated to require COVID-19 vaccinations or weekly testing and masking for unvaccinated employees and must have a vaccination and testing policy. (The full OSHA/ETS fact sheet can be found here.)

At goHappy, we’ve fielded plenty of questions about the mandate, especially from customers who are dependent on frontline employees. Here are a few things your company should consider.

Employee vaccination records

As of now, by Jan. 4, 2022, company policies regarding the vaccine mandate will need to be implemented, and employers will need to review their employees’ proof of vaccination. In addition, they will need to track each employee’s vaccination status – including keeping weekly testing records for those being tested for COVID-19. The easiest proof will be a copy of an employee’s COVID-19 vaccination card, but immunization records from a health care provider, pharmacy or public health system could suffice. 

Obtaining these records by email or text – including through platforms like ours or others – could streamline the process. But it’s important to remember that the records (individual or company wide) need to be treated as confidential under the American With Disabilities Act (ADA). 

And, when it comes to employees under the age of 18, employers do not have to get guardian permission to ask a minor their vaccination status.

Attestation VS proof of records

An attestation is a statement, writing, entry, or other representation subject to 18 U.S.C. § 1001 that confirms that the information provided is true. According to our labor and employment counsel, vaccine card attestation could be an exception to obtaining vaccine records that OSHA would deem acceptable. However, if an employer had all of their employees reporting their vaccination status in that way, it would likely be frowned upon.

State regulations vs. OSHA mandate

Clearly, individual states have differed in their approaches to the pandemic, whether it be about masks or return-to-work procedures. This ETS supersedes state plans with regards to vaccination, face coverings and testing, unless a state plan has been approved by OSHA for occupational safety and health issues. It doesn’t affect individual state or local rules related to public health.

Compensation for employees

Similar to us being asked whether employees need to be paid if they are expected to read company-related texts when they are off the clock, we’ve been asked about paying unvaccinated employees for the time they take to get tested each week. While it might be best to encourage employees to get tested outside of work hours, the ETS suggests employers don’t need to compensate employees for time spent getting tested. That said, you should consider the Fair Labor Standards Act (FLSA) and your state’s laws to determine whether an employee should be paid.

We’ve also been asked about paying employees for time spent getting vaccinated. In these cases, employers are required to allow reasonable time for employees to get their shot(s) and pay up to four hours of time. And employers need to afford employees time to recover from any side effects – this leave isn’t to be taken from regular PTO. 

In conclusion

While it remains to be seen whether the OSHA mandates overcome the current legal challenges, companies need to prepare to implement their vaccination plans. For companies with frontline employees, this is especially important simply because the fact that frontline employees are spread all over the place. Many employers struggle to communicate with their frontline employees in the first place. Even if the OSHA mandates don’t take place, this is a golden opportunity for companies to plan how to better communicate with their frontline employees about key issues and how their employees can relay vital information back to the home office.

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Shawn Boyer

Written by Shawn Boyer

Shawn Boyer, Founder & CEO of goHappy.