In a far-reaching directive issued on Thursday, September 9th, the Biden administration announced its six-part “Path Out of the Pandemic”. Among other initiatives, private businesses with more than 100 employees must soon ensure that everyone is fully vaccinated or tested weekly for COVID-19. According to the White House, this mandate will come in the form of an updated Emergency Temporary Standard (ETS) by OSHA and aims to increase COVID vaccinations, keep schools open and decrease the likelihood of a surge in the pandemic. The mandate will require employers to provide paid time off for employees to receive their vaccination or testing.
In a briefing on September 10th, OSHA officials stated that they are working to align the new ETS with the previous healthcare employee ETS and planning to issue the guidance in the coming weeks. They did not provide a specific timeline. It is expected that the new ETS will contain information on how to collect and verify vaccination status. OSHA’s record retention regulations typically require employers to preserve and maintain employee’s personal health information or medical records for the duration of their employment, plus 30 years so vaccination records may be held to the same standard.
A National Safety Council survey found that employer-required vaccinations resulted in a 35% increase in the number of workers who received vaccinations, according to a September 10th press release. The new ETS will affect more than 80 million workers across the country.
How can you prepare?
Decide on a Vaccination Policy
Are you going to mandate vaccines for all your employees or allow unvaccinated employees to undergo weekly testing? Keep in mind that vaccination status and test results need to be tracked and stored securely. Additionally, time off for vaccination and testing needs to be provided.
Determine Vaccination Status Procedures
The ETS likely will require that you ask each employee for vaccination status and collect proof of vaccination. If this is the case, you should ask employees to provide proof of vaccination which includes administration date and location. To avoid any potential legal issues, you should stress that employees do not provide any additional medical history or information.
Plan for Accommodation Requests
If you do decide to mandate vaccination, it is important to develop a thorough and clear accommodation policy to address religious and disability situations. Title VII of the U.S. Civil Rights Act forbids discrimination against any employee based on an "individual's race, color, religion, sex, or national origin." Any medical information obtained when discussing a medical exemption must remain confidential. Reasonable accommodation procedures should be identified and communicated to all employees.
Develop a Tracking System
Not only will employee vaccination status and records need to be tracked but testing results for unvaccinated employees need to be tracked as well. You should have a plan in place to monitor and securely hold this information for each employee. It is important to consult state laws regarding confidentiality and privacy of medical records
Adhere to OSHA’s guidelines
The new ETS guidelines do not override OSHA’s current COVID-19 guidelines. Social distancing, masking and any additional mitigation guidelines required under OSHA, the CDC, or local public health orders remain in effect.
