A vaccine mandate executive order means employers with 100 or more employees could be subject to additional COVID-19 requirements in a matter of weeks.
That timeline assumes the U.S. Department of Labor’s Occupational Safety and Health Administration moves quickly to craft an emergency temporary standard (ETS) to create an enforcement mechanism and allow President Joe Biden to carry out a vaccine mandate executive order he issued on September 9.
According to the order, employees of applicable companies could agree to weekly COVID-19 tests instead of being vaccinated. A second executive order mandates all federal employees and federal contractors receive a COVID-19 vaccine.
The executive orders bring with them plenty of questions – as new legislation or regulation tends to do – employers and advisors will need guidance on in the weeks ahead. The issue of vaccine mandates is controversial and divisive. However, Syndeo will continue to work with industry partners to provide unbiased and updated information as it becomes available.
Information discussed during a recent Department of Labor webinar addressed questions pertaining to the vaccine mandate executive order. Thom Stohler, vice president of federal government affairs for the National Association of Professional Employer Organizations, shared the following summary of what employers can expect from OSHA’s emergency temporary standard:
- The ETS will not supersede any existing U.S. Department of Transportation rules. OSHA does not have primary safety and health jurisdiction over the transportation system.
- OSHA and federal agencies will work to ensure the ETS is consistent with the vaccination mandates imposed on federal contractors.
- The ETS testing/vaccination requirement will not extend to remote employees who are physically isolated from co-workers.
- Employers will need to provide employees with paid time off or allow employees to use existing PTO to obtain vaccinations and recover from vaccination side effects.
- The 100-employee threshold for coverage applies to the company/employer, not just a single worksite.
- The ETS will apply to the postal service/postal service employees because OSHA considers them private sector employees.
- The ETS will not impact employee collective bargaining.
- The procedures for handling employees who refuse to vaccinate or test will not be addressed by the ETS.
Stohler says some questions were not answered during the Department of Labor webinar but are expected to be included in OSHA’s temporary standard. Those include:
- Who pays for testing? Preliminary discussion indicated it is likely employers will be responsible for the cost of weekly testing. Stohler says whether that cost will be covered by health insurance plans or paid out of pocket is unclear.
- What are the procedures for how employers will verify vaccinations and tests?
- What level of vaccination is required under the ETS (a single shot, two shots or a booster) and associated waiting periods?
The ETS will go through multiple approvals before it is enacted. A final rule is expected to be issued six months after the ETS is issued.
In the meantime, the vaccine mandate executive order likely will be the subject of various legal challenges as well.
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