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Five-step plan to prepare for workplace vaccine mandate


It’s estimated that 80 million workers — or two-third of the nation’s workforce — will be affected by the impending vaccine/testing rule that will require all private employers with 100 or more employees to either ensure their workers are vaccinated or require unvaccinated employees to produce a weekly negative test result before coming to work.

In a report on its website, Fisher Phillips — one of the largest U.S. law firms representing management exclusively, in the areas of labor, employment and other issues —  reviewed the rule, which will be issued by OSHA and take the form of an Emergency Temporary Standard. An ETS allows the agency to enact regulations it can enforce immediately if a “grave danger” to worker safety is present. Covered employers who ignore the standard could face OSHA citations and penalties of up to $14,000 per violation.

Many details of the impending rule have yet to be revealed, noted Fisher Phillips, which will hold an emergency webinar on the rule on Tuesday, September 14, at 2 p.m. ET.

In the meantime, the firm has provided a five-step action plan that employers can implement immediately to put themselves in the best position to comply with the expected ETS.

  1. Adopt procedures for determining employees’ vaccination status: Employers should be ready to implement a system to determine employees’ vaccination status and to maintain confidential records of the same.

The ETS likely will require that you not only ask for vaccination status but collect proof of vaccination. If this is the case, you should ask employees to show you documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information.

In place of collecting vaccination records, an employer can create a confidential list of vaccinated workers in order to minimize legal risks and requirements associated with retaining medical documentation, including checking state laws regarding confidentiality and privacy of medical records. If you decide to collect vaccination records, it is recommended that you treat those records as you would other medical records.

  1. Determine if you will mandate the vaccine or allow unvaccinated employees to be tested weekly:  For some employers, collecting and tracking weekly test results may burden them such that they decide to adopt a mandatory vaccination policy. 
  2. Develop a plan for handling accommodation requests: Employers who plan to have a mandated vaccination policy must also have a detailed and clear accommodation policy for any employee who wants to be exempted from the vaccine for religious or disability reasons.   

You should also be prepared for employees to request an accommodation from the weekly testing requirement – an accommodation process that must be addressed separately from requests for exemptions from any vaccination mandate.

4. Have a plan for tracking test results: Employers who decide to allow weekly testing for the unvaccinated will need a plan in place for collecting and tracking the test results. If regular employment-related testing is not covered by the employee’s health insurance and free testing is not feasible, the employer will need to review the applicable federal, state, and local employment laws to determine if it (the employer) must pay for testing.

Also, under the federal FLSA, employers must pay non-exempt employees for the time spent getting testing during the workday.

5. Prepare for OSHA complaints and inspections: Any existing OSHA and CDC compliances, or state or local public health orders, in place related to COVID-19mitigation and prevention will need to stay in place.   OHA could ask for an employer’s COVID-19 response plan and training records if it receives a complaint or inspects a workplace concerning the vaccine mandate.

Train managers and supervisors on what to do and say if OSHA arrives for an inspection — this could save your company from paying significant fines.

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