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Federal Vaccination Mandate: What Businesses Can Do Right Now

by Ben Spradling | Dec 8, 2021 9:22:14 AM

UPDATE: On Thursday, January 13, 2022, the US Supreme Court struck down the federal vaccine mandate for businesses employing 100 or more employees. In a separate decision, the court upheld the previously existing mandates for almost all employees at hospitals, nursing homes, and other health care providers that receive federal funds. Additional information following the court's decisions is available here.

In the interest of providing advice and resources to private businesses still moving forward with vaccine and testing requirements, we are keeping this original content published at this time.

With enforcement of a federal vaccine mandate back on after weeks of hold-up, it may be difficult for your business to know what needs to happen next.

Earlier in November, the Department of Labor's Occupational Health and Safety Administration (OSHA) formally issued its Emergency Temporary Standard (ETS) – a set of rules requiring businesses employing 100 or more workers to be fully vaccinated against COVID-19 by January 4, 2022. Following that date, unvaccinated employees would need to wear face masks and show proof of a negative COVID test at least once a week.

Action taken since that announcement has, understandably, created some confusion. Business owners have felt uncertainty about when the rules will truly go into effect. There’s even been speculation as to whether they’ll be enforced at all.

On November 12, a federal court blocked OSHA from proceeding with its vaccine requirement. More than a month after that decision, though, on December 17, the 6th US Circuit Court of Appeals lifted the stay on the rule. OSHA has now stated it will begin issuing fines to businesses that fail to comply by as early as January 10, 2022.

After weeks of ambiguity, business owners are now needing to action. Should the ETS end up proceeding as stated, penalties imposed on organizations for not complying by the January deadline could exceed more than $100,000 per violation. In order to comply, though, employers must maintain a record of their team’s vaccination status and all test results. Those processes take time to introduce.

As the updated deadline to comply with the ETS approaches, there are measures to take that prepare your operation and support your employees. Here are some steps to take right away.

Use communication to cut down confusion.

Clear and consistent communication has been essential for businesses navigating each stage of the pandemic. Employers have already had to maintain open dialogues to introduce policies including face mask guidelines and return-to-work plans. The implementation of a vaccine mandate is no different.

It’s your job to eliminate as much confusion for your employees as possible. And the best way to do that? Be transparent about the policies you’re implementing.

Many elements of the OSHA-issued requirement may not be up to you, but your team still needs to know all the information. Important items to highlight include:

  • Deadline to be vaccinated.
  • Process for requesting an exemption.
  • Time available to get the vaccine and recover.
  • Consequences for not complying.
  • Data collection policies detailing how worker vaccination information will be collected and housed.

How you share that information depends on how your team interacts. Ideally, because of the mandate’s significance, it may be best to use every channel at your disposal. At least in the beginning, anyway.

Department meetings, internal newsletters, flyers posted in the breakroom – broadcasting the new policy wherever your workforce gets together is a useful way to raise some much-needed awareness. Employees likely will not appreciate having a vaccine requirement policy sneak up on them.

Offer encouragement before enforcement.

Feeling encouraged to make a decision is more empowering than being told what to do. As you await updates on the ETS roll out, this may be a good time to positively promote vaccinations. Mandates aren’t exactly a choice, but you do have the ability to make employees feel like they’re in control of their decisions.

Amy Robinson and Iván Resendiz Gutierrez of Miller Nash Graham and Dunn LLP joined Better Business Bureau’s webinar series and explained what employers should know about COVID-19 vaccination requirements. They explained that encouraging vaccinations in the workplace starts with education.

“The first step is to develop and distribute accurate, reputable COVID-19 vaccine education materials from the CDC and other sources,” said Gutierrez. “Provide multiple resources so people can say, ‘Look, it’s not just the CDC, it’s not just our local health authority, it’s everyone saying the same thing.’”

Gutierrez and Robinson also mentioned the effectiveness of incentives. Some employers have gone so far as to offer bonuses and extra time off to workers who elect to get vaccinated. Others have also tied their vaccination incentives into currently existing wellness programs offer through their organization.

Practice prudence by making a plan.

Given its current legal challenges, it’s fair to wonder if the January deadline for the ETS will still apply. If it ultimately does go in effect as announced, though, you’ll want your business to be prepared. So, if you haven’t already, it’s time to get started.

You’ll need to determine how many of your workers are already vaccinated (a survey should help identify that number). Additionally, crafting written policies for implementing the rules within your organization should be a priority so you can share those with staff. The same goes for your processes for responding to requests for exemptions.

Deadlines connected to the ETS rollout may continue to shift. Positioning your business so that it best supports your employees doesn’t have to wait.

What concerns or questions does your business have about the federal vaccination requirement? Leave us a comment so we can help connect you with solutions. 

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