Making Sense Of The Covid-19 Vaccine Mandates

January 7, 2022
•
5 min read

In a recent article for HR.com, Next Level Benefits CEO Lauren Winans provides clarity and recommendations for employers, specifically HR teams, as they refine their workplace safety policies.

Full HR.com article:

In July, the White House rolled out vaccination requirements for federal workers and contractors. Then, on November 4, 2021, President Biden announced two more mandates, one for employers with more than 100 employees and another for healthcare workers. The first was to be enforced by the Department of Labor, Occupational Safety and Health Administration (OSHA) specifically; the second was delegated to the Department of Health and Human Services’ Centers for Medicare and Medicaid Services. Altogether, the November mandates cover over 100 million workers. Then came court challenges, appeals and even appeals of appeals, resulting in the stay (or pause) of both the mandates.

On December 17, the 6th U.S. Circuit Court of Appeals lifted the stay on the mandate. Yet another appeal was immediately filed with the Supreme Court, but in the meantime, the latest developments mean that employers will need to comply with the mandate or face penalties. To give employers time to comply, OSHA will not enforce any requirements under the mandate until January 10. Additionally, the agency “will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard,” according to an OSHA update. This means that vaccination verification and indoor masking requirements for unvaccinated workers will begin on January 10, and weekly Covid-19 testing policies for unvaccinated workers must be implemented by February 9, 2022, if the mandate is upheld.

To further complicate matters, OSHA allows states to develop their own workplace health and safety plans as long as they are “at least as effective” as the federal guidelines. Even some cities can create their own private-sector rules. Recently, New York City has announced its own private-sector vaccination mandate. The Omicron variant may change the definition of vaccinated to include boosters or yet to be developed vaccines.  

Confused? You’re not alone. None of us fully understand where the mandates are headed. We don’t know whether we should be preparing for one or not. Yet regardless of a mandate, employers still have to deal with Covid-19 in the workplace. Determining the appropriate approach to vaccines and testing is needed, no matter the federal government is requiring it or not. Undoubtedly, most employers would prefer the cover of a federal requirement, rather than be forced to take a public stance on their own. The advantage of a mandate is that it applies the same rules across most employers, most likely reducing the turnover that employers will experience if they choose to create their own policy. And those that are more in favor of creating a safe and healthy working environment above all else are going to appreciate it if the mandate is upheld. More libertarian-minded employers, however, may side with an employee’s right to choose. Employees may complain about a vaccine requirement, but it will be easier for them to accept if there’s an executive order that’s been rubber-stamped by the courts.

But requiring that all employees be vaccinated should be thought of primarily as a safety issue, not as a legal or political matter or simply a cost of doing business. Of course, putting safety above profit is easier said than done. Employers are incredibly worried about employee turnover right now. It is challenging to fill open jobs and costly to train new employees. Employers would like their competitors to do what they are doing in terms of vaccination or testing. They don’t want to lose an employee, who wants their coworkers to be vaccinated. However, they also don’t want to lose an employee, who believes it is everyone’s right to choose if they want the vaccine or not. The possibility of losing great employees to a competitor who’s taken the opposing stance looms large. It’s a classic “damned if you do, damned if you don’t” scenario.

At present, our clients’ greatest wish is a return to some semblance of stability and predictability. If a vaccination policy is in their best interest to maintain operations and profit, they are likely going to put one in place, whatever the courts ultimately decide. A curveball is what effect, if any, the Omicron variant will play in the government, companies and the courts’ decision-making processes. Ultimately, we don’t know what will transpire with the new variant, and though it is very contagious, its symptoms also appear to be mild. But its arrival in the midst of the mandate debate is sure to widen the divide between individuals who want to be proactive versus those that are satisfied with being reactive. A December Wall Street Journal poll found Americans split almost squarely down the middle, guaranteeing that some employers will take a wait-and-see approach while others enact similar steps as were taken during the beginning of the pandemic.

To deal with the uncertainty, we recommend at minimum creating a straw man outline of a plan for either outcome. We also recommend that HR executives stay in touch with their labor law attorneys. They’re an essential source of information right now. Also, identify a cohort of your employees as your “Vaccine or Test Working Team”, ready to execute the mandate as it stands today or pivot if necessary upon a Supreme Court decision. While we await the final decision from the Supreme Court, it is important to remember that the mandate is a go at this point until further notice. An employer’s best chance at getting ahead of the game is to begin preparations to comply.

View the published article here.

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