What’s in a mandate? Navigating OSHA’s new workplace vaccine rules

More than a year beyond the emergence of the COVID-19 pandemic, new infections continue to grow in the U.S. with serious implications for the country’s economic recovery compounding the human cost.

Earlier in 2021, some organizations, particularly those in the health care sector, took stopping the spread of COVID into their own hands, issuing strict vaccination requirements and making compliance a condition of working arrangements, benefits, and employment itself. Companies in other industries responded in different ways, illustrated by Delta Air Lines’ approach of adding a $200 charge to the health insurance premiums of unvaccinated employees.

In early September, the Biden administration unveiled a new piece of its pandemic response plan. An emerging Occupational Safety and Health Administration (OSHA) rule will require companies with more than 100 employees to either ensure those workers are vaccinated or provide proof of a negative test each week before reporting for their jobs.

This unprecedented step raises the stakes considerably for business owners. Many are now navigating through questions and confusion about the rule’s implementation and impact. How will the 100 employees be counted? In an already unsettled labor market, will dissatisfied employees vote with their feet? Perhaps above all, what is the first step for businesses to take?

OSHA’s Emergency Temporary Standard (ETS) putting the new vaccine mandate in place has yet to be formally released. While it is likely that the ETS will face legal challenges from several fronts, if it is passed, OSHA will likely not enforce the mandate for 75 days. Businesses should be taking full advantage of this waiting period to consider how they will satisfy the ETS once its full, detailed requirements become available. Even in states where OSHA does not have direct jurisdiction — Tennessee among them — will still be required to adopt the same, or a substantially similar, directive within 15-30 days of OSHA releasing the official federal mandate.

Like anything else in business, the more that can be thought of and planned ahead, the better, to minimize disruption and help an organization manage change.

First, the “100-employee rule” will generally be counted on a companywide basis. For many employers, there could be a slight distinction between total headcount and the number of staff who need to be vaccinated. Fully remote workers on the payroll, for example, will probably not be required to receive the vaccine, but they will still be considered in the overall employee headcount. There will still be other considerations, such as successfully coordinating with third-party contractors about vaccine compliance, particularly in situations where they have less than 100 employees.

Second, health care and non-health care organizations will face different requirements. A distinct but overlapping Centers for Medicare and Medicaid Services (CMS) directive conditions a facility’s receipt of federal funding on compliance with vaccine mandates. While this particular provision is facing numerous legal challenges, hospitals, clinics, nursing homes, and long-term care facilities still need to prepare to enforce vaccine requirements without the alternative of weekly testing, available under the OSHA directive to employers outside the sector. And, the “100-employee rule” doesn’t apply to health care facilities, which face the CMS directive regardless of size.

Company procedures will need to be reoriented to this new standard, from sensitively handling accommodation and exemption requests on religious and medical grounds, to adopting procedures for determining vaccination or testing status that sufficiently respect privacy and confidentiality. Paid time off (PTO) policies will need to reflect OSHA’s allowance for vaccination and side-effect recovery time, though nothing in this directive appears to prevent employers from requiring workers to use existing PTO.

The chance also exists that some workers will choose to avoid the mandate by leaving affected companies for smaller ones. In an already tight labor market, it remains to be seen just how significant of a problem this will pose.

There is no one-size-fits-all solution to those challenges. Despite a tense climate surrounding those mandates, previous approaches to new policies, tailored to the company’s particular culture and communication style, are likely to be just as successful in adopting and implementing the new OSHA requirements for vaccination. Open, collaborative language that emphasizes team members’ obligations to look out for one another’s health and safety, as well as emphasizing the overall mission of your organization to achieve continued success is always a best practice.

More specific guidance, such as handling OSHA complaints and inspections related to this ETS, and on the question of administration of, and payment for, employee COVID testing remains forthcoming. In the interim, companies should always be willing to contact HR and policy experts for help and guidance when needed, and most of all, keep their cool. The past 18 months have proven that smart, resilient, and adaptable organizations can not only confront difficult circumstances, but also grow stronger and be better positioned for the long term.

*This article originally appeared in Memphis Business Journal and was written by Amanda McCollum, PHR, SHRM-CP at Adams Keegan.