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What Employers Need to Know About Federal COVID-19 Vaccine Mandates

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In an effort to combat the COVID-19 virus and its subsequent variants, the Biden administration has instituted three important mandates that employers should be aware of as they may impact their business. First, the Emergency Temporary Standard (ETS), issued by the Occupational Health and Safety Administration (OSHA), requires that all employers with 100+ employees mandate vaccination or weekly testing. The second mandate involves federal workers and contractors and requires them to obtain a vaccination without any option for weekly testing. The final mandate was issued by the Centers for Medicare and Medicaid Services (CMS), and requires vaccination of all healthcare workers at CMS-covered facilities.

OSHA’s Emergency Temporary Standard

The mandate that has the most wide-ranging impact is Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS) that calls for employers with 100 or more employees to either require employees to obtain a COVID-19 vaccination or to prove compliance with a weekly-testing program. This ETS is expected to affect over 80 million employees. 

On December 17, the Sixth Circuit Court of Appeals lifted the stay placed on OSHA’s ETS issued by the Fifth Circuit in November. The court held that OSHA does have statutory authority to mandate national vaccines and/or testing for employers with more than 100 employees. Specifically, it outlined that because COVID-19 is a virus that causes bodily harm, OSHA was well within its administrative authority to regulate the health and safety of employees. 

Since the Sixth Circuit’s decision to dissolve the stay, OSHA announced that it will not be issuing citations for noncompliance with the ETS requirements until January 10 and the testing requirements will not be enforced until February 9 with the caveat that the employer must make good faith efforts to come into compliance as soon as possible.

After this ruling by the Sixth Circuit, eight groups challenged the OSHA vaccine mandate and filed emergency applications with the U.S. Supreme Court asking it to stay the mandate again until the case can be heard in the highest court. On December 20, the Supreme Court requested a response from the federal government by December 30. And, on December 22, in an almost unprecedented move, the Supreme Court ordered oral argument on these emergency applications, which will take place on January 7.

Despite the fact that the validity of the ETS is now squarely before the Supreme Court, employers should still operate as if the ETS will go into immediate effect. OSHA has implemented new deadlines to reflect the current status of the ETS.

By January 10, employers should:

  • Track employee vaccination status
  • Create a database detailing vaccination information for each employee
  • Require unvaccinated employees to wear a mask
  • Provide paid time off for employees to get vaccinated and recover

As of February 9, 2022, employers must also require unvaccinated employees must start testing for COVID weekly. Self-administered or self-read tests would not comply. Employers must observe or use a proctor and have employees tested on site, or at a recognized testing facility.

The Mandate for Federal Employees and Contractors

The second mandate stems from President Biden’s executive order that requires most federal employees or contractors to get vaccinated. This mandate does not have a testing option.

On December 7, the U.S. District Court for the Southern Section of Georgia granted a preliminary injunction to temporarily halt the enforcement of the Biden’s administration’s vaccine mandate for federal contractors.The court found that the administration had overstepped the bounds of it authority under the Federal Property and Administrative Services Act 40 U.S.C. 101 et. seq. The injunction effectively prohibits enforcement of the federal contractor vaccine mandate in all 50 states and any territory of the United States. However, on December 17, the Eleventh Circuit, denied the government’s motion to stay. This effectively upheld the injunction. The court found that the government had failed to show that it “would be irreparably harmed absent a stay.”

The CMS Mandate

The third mandate is an interim file rule of the Centers for Medicare and Medicaid Services (CMS), which requires vaccination of all healthcare workers at CMS-covered facilities throughout the United States. The CMS mandate is currently enjoined by court order in 25 states and continues in full effect in 25 other states. After the ruling by the Fifth Circuit in November, however, CMS suspended implementation and enforcement of the mandate pending resolution of the challenges before the Supreme Court.

COVID-19 Vaccines: Should You Mandate, Motivate or Educate Employees?

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For the past year, employers have grappled with unprecedented workplace safety and human resources challenges, forced to address safety measures that were unfamiliar for many industries. Employees have become accustomed to daily health screening and masks, and human resources has added COVID safety training and enforcement to its job duties. As vaccines are becoming more prevalent, employers have to now decide whether they should vaccinate their workforces. Making this decision can seem daunting and the applicable employment laws can seem overwhelming. However, there are some baseline considerations that may help.

As a threshold matter, employers are obligated under the OSHA General Duty Clause to provide a safe working environment to their employees. At the direction of President Joe Biden, OSHA released new comprehensive guidance regarding COVID workplace safety, including a 16-point list of essential components of a workplace safety program. OSHA recommended that employers make the vaccine available to eligible employees at no cost, and made clear that employers must continue to enforce COVID safety protocols regardless of an employee’s vaccination status “because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”

Employers now must determine whether they will mandate, motivate, or educate employees to receive the vaccine. They will first have to determine whether the vaccine will provide a safer working environment. While it seems clear that the vaccine will minimize or eliminate the vaccinated individual’s COVID symptoms, it remains unclear whether a vaccinated worker may spread the virus to others. Therefore, a vaccinated workforce may still be a contagious one.   

Businesses that serve in-person customers may benefit from mandating the vaccine. A local restaurant or retailer may be able to advertise that its staff is vaccinated encouraging patrons to return. While a mandatory vaccine program may be complex, the benefit of returning customers may outweigh the pain of a program. Conversely, in an organization where most employees have remained remote and business has continued at normal levels, the complexity of a mandatory program may not be worth it. In the latter scenario, it may be better to implement a voluntary program, which is easier to administer and has less compliance complexity. Employers will have to weigh the return on investment for each approach.

Employers will also have to determine their appetite for risk. Many initially lean toward a mandatory vaccine approach in an effort to protect employees from becoming seriously ill. However, even mandatory programs pose liability risks for employers. Essentially, there are two schools of thought regarding mandatory vaccine programs:

  1. A vaccinated workforce is essential to safety. A vaccinated workforce will reduce community spread and bring the workforce closer to herd immunity. The fewer employees that become symptomatic or sick, the sooner we may reduce COVID-19’s spread. Likewise, it would be negligent, or a violation of the employer’s General Duty obligations, to not mandate eligible employees to receive the vaccine.
  2. The vaccine is too new to mandate. On the other hand, some believe that it would be negligent, or a violation of an employer’s General Duty to require employees to receive the vaccine, noting that the vaccine is merely under emergency authorization. Consequently, mandating that eligible employees receive the vaccine would create employer liability for any possible harm the vaccine could cause to employees.  

It is also important to note that mandatory programs will likely trigger workers compensation coverage for any medical services and/or lost time associated with employee reactions to the vaccine. Workers compensation coverage is not always a bad thing. Employers should remember that the workers compensation exclusive remedy provision protects employers from negligence and tort claims (but not gross negligence). 

Employers should also consider the practical and operational complexities associated with a vaccination program. Employers who implement a mandatory program must be prepared to enforce the rules. They may be faced with difficult decisions regarding candidates and eligible employees who refuse to receive the vaccine (without any legal protections). Can the employer continue to recruit and retain talent under a mandatory program?

Regardless of where an employer lands on the vaccine program spectrum, they must take their employee complaints and concerns seriously. Likewise, employers must not take adverse action against a complaining employee. Employee OSHA whistleblower cases have reached unprecedented numbers. As of February 5, there have been 4,738 COVID OSHA whistleblower complaints filed in the previous 12-months. Before 2020 (and COVID-19), the largest number of complaints received by OSHA in a 12-month period was 3,355 in 2016.

The good news, if there is any, is that employers that provide safe working environments, are open to employee concerns, and communicate with workers are already taking positive and proactive steps to avoiding liability and litigation. The following best practices may be helpful: 

  • Review your COVID safety program to ensure it comports with OSHA’s 16-point COVID prevention program guidance, and continue to review and update as guidance and regulations change.
  • Provide managers and employees regular safety training, and provide managers with training to enforce safety programs, hold employees accountable, and document all safety incidents and violations.
  • Stay up to date with regulations. OSHA has updated emergency temporary standards, and local and state laws continue to change rapidly.
  • Update anti-retaliation policies to include COVID safety protocols. Also consider a whistleblower hotline and ensure that managers are trained and understand how to take seriously and address employee concerns and complaints.
  • Be sure your workforce has the most current information regarding COVID-19, its symptoms and transmission, and the vaccine. Also be sure to provide all communication in multiple languages for a multilingual workforce.

Ultimately, COVID workplace safety is at the core of any employer’s operations. Whether an employer mandates, motivates or educates its employees to receive the vaccine, they must continue to evolve and enforce their COVID safety protocols.

Preparing for the Next Stage of the COVID-19 Pandemic at RIMS Content Roundtable

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In last week’s “RIMS Content Roundtable: COVID-19 Vaccines and Distribution,” a group of RIMS members gathered for an exclusive Q&A with Dr. Adrian Hyzler, chief medical officer at Healix International, who focused on progress with COVID-19 vaccination efforts and moving toward a “next phase” of the pandemic.

“Where we’re headed is: this pandemic will end—all pandemics end—but it doesn’t end all of a sudden, it goes out with a whimper…it sort of just seeps away at different rates around the world,” Hyzler said, noting the rates of vaccination and controls implemented country by country will curb the coronavirus at different paces. “But it’s now going to be an endemic disease, meaning it’s something we live with. We’re not going to get rid of this disease.”

He believes recognition among public health experts that COVID-19 will become endemic rather than be eradicated prompts new conversations about expectations and preparations around the world.

“The new dialogue is: what is the acceptable level of COVID and what is the acceptable level of deaths from COVID? Because COVID is a respiratory disease and people die of respiratory diseases every year, especially in winter. That’s something we live with,” Hyzler said. “We’re going to have to get to a point where there are going to be people who die from COVID every year, but they’re not going to overrun hospitals, and they’re not going to affect care of other diseases.”

Getting to the stage of “a disease we live with” requires mass vaccination, and he stressed the importance of the widespread effort to encourage people to get COVID vaccines as soon as possible. Scientists are not yet sure what percentage of the population will need to be fully vaccinated to control the pandemic sufficiently and, he said, “that’s vaccinated across the whole population evenly, and that’s not the case—we know there are communities where they are vaccine-hesitant, we know there are religious groups that are not as confident about the vaccine, and they tend to cluster, so those are always ready for outbreaks.”

Rather than discuss the sometimes controversial or scientifically debatable concept of “herd immunity,” Hyzler encouraged thinking about “community immunity.”

“‘Community immunity’ is good because it’s more about what we can do for each other,” he explained. “Getting vaccinated, for a 28-year-old, is not necessarily about that person, it’s about what it can do for the community—the older people, the people who have preexisting conditions that make them vulnerable.”

This kind of community orientation and widespread adherence to best practices will be critical in getting to any next phase of the pandemic, and to staying there. Reflecting on his experience of the acute lockdowns implemented in the U.K., for example, Hyzler stressed the lessons learned about the impact of mass adherence to mitigation and prevention measures. “Even with the variant that’s come out here that is very transmissible and has become common in the States, we’ve shown that non-pharmaceutical interventions—which are masks, distancing, isolation, hygiene—they work,” he said.

Many of these non-pharmaceutical interventions will not be going away any time soon—indeed, they may be just as critical moving forward. Hyzler predicted, “I think, into next year, we may still be wearing masks in many situations and there may be a great move to more things outdoors, since we know how much safer that is, and I think we’ll have learned a lot of things from this… Hopefully we’ll also be more ready for something that will happen again.”

As the world moves toward mass vaccination to help curb COVID-19, companies should be preparing for the next stage of the pandemic and creating detailed plans for safely returning to work. To that end, Hyzler noted some large private companies have publicly offered resources to help other enterprises protect employees and operations amid the pandemic and prepare for a return to workplaces.

For example, Ford has published two versions of a “Return to Work Playbook,” one for manufacturing and another for non-manufacturing companies. According to Ford, in addition to providing these documents to employees, “the company is also providing a copy to its suppliers, business partners and relevant third parties to ensure they are all aware of its health and safety practices when they are on site at Ford facilities or are interacting with Ford personnel.” Companies outside of Ford’s supply chain can also benefit, however.

“Add in some CDC advice, and look at what people [around you] are doing, because there are little things you can do that are very specific to your area or your workforce,” Hyzler recommended. “Then, take the information [from the playbook] that’s useful and mold it into a mini version of a playbook, if you’re a smaller company.”

In addition to the Ford playbooks Hyzler mentioned, check out these publicly available resources from the private and public sectors that may offer help in managing COVID-19 risks and creating a return-to-work plan for your enterprise:

Ford’s Return to Work Manufacturing Playbook [PDF]
Ford’s Return to Work Non-Manufacturing Playbook [PDF]
IBM’s Return to Workplace Playbook [PDF]
Kaiser Permanente’s COVID-19 Return to Work Playbook
CDC’s Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19)
CDC’s “Daily Activities” Guide for Returning to Work
OSHA’s Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace

Participants in the roundtable event were able to debrief with fellow risk professionals in breakout rooms, sharing impressions from the session and experience addressing related risks within their own organizations. For more opportunities to discuss return-to-work plans, vaccine considerations and other COVID-related risks with other risk professionals, all RIMS members can continue the conversation on Opis, the society’s community engagement and networking platform. Among almost 200 education sessions, the upcoming RIMS Live 2021 virtual conference will also offer dozens of COVID-related education and networking events from April 19 to 30, and registration is now open. To hear more insights directly from Dr. Hyzler, you can check out his appearances on the RIMScast podcast.