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Top 5 Answers on Biden’s Vaccination Mandate

Q&A with employment law expert Melissa Clarke
On September 9, 2021, President Biden released the COVID-19 Action Plan with a section “Requiring All Employers With 100+ Employees to Ensure Their Workers are Vaccinated or Tested Weekly”, leaving many employers confused on what to do next. We talked with Melissa Clarke, an employment lawyer with over 20 years of experience focused on advising HR leaders and C-level execs at hypergrowth companies.
Read the in-depth Q&A – with “cheat sheet” at the bottom – to find out:
  • what the mandate means
  • what the likely timeline looks like
  • who’s impacted
  • what’s required, and
  • what specific steps you need to take now.
Q1: Can you give us some background on the new Biden vaccination mandate? What exactly is it and why should companies be on alert?

First, what President Biden did was announce an Executive Order under his authority to require federal employees to provide proof of vaccination. He then directed OSHA (the Department of Labor’s Occupational Safety & Health Administration) to issue an Emergency Temporary Standard (“ETS”) that similarly requires employers with 100 or more employees to obtain proof of vaccination.

So he is fast-tracking what is a usually slow process, by leveraging an ETS – an emergency set of standards that a federal agency is allowed to promulgate without its usual notice and comment period.

The COVID-19 Action Plan states that OSHA “is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.”

If your company has 100 or more employees, you need to be ready.

Q2: What is the compliance timeline?

The ETS is expected in the coming weeks, and ideally it will come with guidelines and FAQs. We don’t yet know the timeline by which employers must comply, the mechanisms required to gather and retain proof, any exceptions and exemptions, or if there are penalties for non-compliance.

We can expect legal challenges since there are already several being mounted. We will be watching closely to see if courts stay – stop the rule from going into place – during any pending legal challenges or if the rule will roll out anyway.

Over some period of time, we do expect to see a rule issued which will apply across the country. At that time, we’ll have greater clarity. Similar to the guidelines for federal employees where 75 days are provided to give time for employees to be double jabbed, the ETS will also likely have a period of time in which employees can be seeking vaccinations.

But employers have to move really quickly. You can’t wait until 75 days have passed. You need to be prepared with a game plan – with official communications and internal processes to track the required info and manage exemptions and exceptions. Folks should be taking action now!

Q3: Which companies are impacted? What if we are fully remote?

One of the unknowns is if the rule applies ONLY to employees on-site – at the office or engaging at in-person meetings or events – or also to remote employees. We can anticipate a legal challenge to the rule if it extends to remote employees, as the Executive Order does. But we know that the whole intent is to stimulate vaccination, so it’s likely the mandate will also apply to remote workers.

OSHA’s reach is only in the US. We don’t know how they are counting the 100 employees, e.g., full time, part time. My advice is that if you have 100 employees in the US in aggregate, you should take steps in the likely event that you are impacted.

Q4: What will likely be required?

Companies will need a mechanism to collect, safely store, and keep the required employee data on a need to know basis. That data will be the records of whether or not someone is vaccinated. This could be proof of vaccination via PDF or photo of the vaccination card or self-attestation, but we won’t know for sure until guidelines are issued.

In any event, this is confidential medical data, so it’s subject to the data protections that apply to that category of information. Employee medical information must be accessed on a need-to-know basis only and employers should NOT share whether an employee has or has not been vaccinated with managers or co-workers. You should NOT have this type of tracking information on a spreadsheet accessible to others. It must be protected.

While employees may be discussing their vaccination status with one another, companies must keep this data private and should not disclose identities of those vaccinated and unvaccinated or the identities of actual COVID cases.

I would also recommend that employers stay away from the encouragement of social sharing of an employee’s vaccination or even “clear to return to office” status. That equates to being vaxxed. Be very careful; vaccine status can relate to medical conditions and personal data, so must be treated with sensitivity. If an employee shares a colleague’s medical information inappropriately, that’s a disciplinary issue.

Bottom line, be ready to build a mechanism to collect, safely store, and keep records of whether or not employees are vaccinated. Protect the data and keep it strictly on a need to know basis.

Q5: What specific steps should companies take now, including employee communications?

First, make sure you’re nimble enough to move quickly with a project team in place- that usually includes HR, legal, marketing and communications. When we know the rules, you’ll be able to put the appropriate systems in place in short order. You need to have a plan to communicate with employees so they understand the WHAT, WHY and WHEN.

Second, companies need to decide philosophically on where they stand on the vaccine mandate and what they will do if they have employees who are exhibiting hesitancy. The guidelines will likely not be definitive and they may not tell employers exactly what to do with employees who refuse to comply – so you may have a choice of putting employees on leave, allowing testing, remote work or terminating employment.

Some large companies have acted ahead of the mandate – we see this with airlines, retailers, and healthcare. United Airlines, for example, announced a strict vaccination mandate with very limited – and evolving – exceptions.

We don’t yet know the requirements or suggestions for religious or medical accommodations, but you should be discussing internally what your organizational stance will be.

The rules may allow for weekly testing in lieu of vaccination. We expect the employer will pay for this testing and possibly for the time spent testing – so companies should be calculating these costs and benefits in deciding if testing will be an alternative to universal staff vaccination.

The communications plan should be consistent with your organizational position – for example, if you are a healthcare company that requires vaccination for public health and safety reasons with no weekly testing option – the articulation for the WHY must be clear when you discuss this with your employees and the public.

The how will follow from the systems your project team has put in place. Make sure employee communication about your requirements is clear and that you track receipt of that communication so that everyone has the same messages at the same time. Your workforce shouldn’t be wondering how to submit proof of vaccination or deadlines for doing so – that should be very clear in the communication you send.

Keep in mind this situation is very fluid. No matter how comprehensive the guidelines will be, we will likely still have questions – I can see questions around boosters, annual flu vaccination, etc. We don’t have all the answers right now – it’s OK to acknowledge that when addressing your teams. This is a dynamic situation, this is a brave new world.

For now, focus on the two things: (1) move quickly with a project team in place – HR, legal, marketing, communications; and, (2) decide philosophically on where your company stands, i.e., what will you do if employees are exhibiting hesitancy.

Key Takeaways “Cheat Sheet”

The COVID-19 Action Plan states that OSHA “is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.”

Timeline

    • If you have 100 or more employees in the US, you need to take steps now. It’s likely that the rule will include both in office and remote employees.
    • The ETS is expected in the coming weeks, and ideally it will come with guidelines and FAQs for greater clarity.

 

Actions

    • Make sure you’re nimble enough to move quickly with a project team in place, including HR, legal, marketing and communications.
    • Be prepared with a game plan – with official communications and internal processes to track the required info, manage exemptions and exceptions.
    • Build a mechanism to collect, safely store, and keep the required employee data accessed on a need to know basis.
    • That data will probably include vaccination records, which may be copies of the vaccine cards or could include other forms of attestations.

 

Caveats

    • This is confidential medical data. DO NOT have this information on a spreadsheet accessible to others. DO NOT ask people to self-identity status to others. DO NOT disclose the identity of a COVID case.
    • An employee has the right to share their status to others, but employers should not get involved in encouraging public disclosure
    • If an employee shares another employee’s medical info, that becomes a disciplinary issue. Be on guard for that.

 

Communications

    • Decide philosophically on where you stand on the mandate and what you will do if you have employees who are exhibiting hesitancy – e.g., allow for weekly testing, leave, remote work, or elect termination of employment – assuming these options are acceptable under the ETS.
    • Comms should address the WHY first, then the HOW and the WHEN. ACKNOWLEDGE that this is a fluid situation subject to change.
    • Make sure to communicate to employees many times and track that everyone has received the official communications.

 

Many thanks to Melissa Clarke for her actionable insights. For more information, you can reach her at melissa@scalefirm.com.

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