Understanding COVID Vaccine Mandates – And Four Steps Employers Can Take To Prepare For Compliance

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This year, the world continued to contend with a pandemic due to the coronavirus delta variant. Employers found themselves struggling with a number of challenges, including the utilization of remote workforces, COVID-19 testing, and healthcare costs.

Let’s take a closer look at what employers in the U.S. should understand about the evolving COVID-19 pandemic response – and steps they can take to be compliant and prepared as their workforces return to the office.  

Federal Vaccine Mandate & Other Required Tests

On September 9, U.S. President Joe Biden announced a series of proposals to combat the COVID-19 pandemic more aggressively. This plan includes a directive that OSHA establish a rule requiring private employers with 100 or more employees to mandate that their workers be vaccinated or undergo weekly testing. Additionally, he stipulated that federal employers, contractors, and most healthcare workers across the country be vaccinated against the virus. This announcement sparked several questions for employers across the U.S. concerning how these rules will be implemented. As of the publishing of this blog, here are the latest updates on the mandate, and what it means for employers.

Mandating COVID Testing for Federal Employees

Federal employees must receive the final dose of an authorized vaccine in enough time to be considered “fully vaccinated” by November 22, 2021. “Fully vaccinated” means two weeks have passed since someone received a single-shot vaccine or the second dose of a two-shot vaccine, so the last dose should have been administered by November 8. Federal contractors are under a contractual obligation to have had employees vaccinated by October 15, 2021. If you are a federal contractor and still have questions, you should work with your federal agency regarding what they require for you to be compliant.

Centers for Medicare & Medicaid Services (CMS) is developing emergency rules to comply with the Emergency Order, and as of now, we are still waiting for the release. CMS states that the rules will apply to “all providers and suppliers that participate in the Medicare and Medicaid program.” The U.S. EEOC (Equal Employment Opportunity Commission) permits exemptions (medical and religious) from immunization, but those claiming an exemption will require weekly testing.  Those without an exemption who elect not to be immunized effectively opt-out of employment where immunizations are required.

OSHA Emergency Temporary Standard for Private Employers

On October 12, OSHA submitted an emergency regulation to the White House for a final review. This Emergency Temporary Standard (ETS) was officially released on November 5. Some relevant takeaways are as follows:

  • The ETS covers private employers with 100 or more employees
  • Other exemptions within the ETS:
    • Employees who work from home.
    • Employees who work exclusively alone or outside with minimal indoor contact with other employees or customers as conditioned by OSHA.
  • The ETS will take effect:
    • Employers must comply with most provisions by 30 days after the date of publication in the Federal Register (December 6).
    • Employers must comply with the testing requirement by 60 days after the date of publication in the Federal Register (January 4).
  • The ETS does not mandate employers to pay for COVID-19 testing on unimmunized employees. However, other laws, regulations, or collective bargaining agreements may require employer payment for testing.
    • Covered employers have the burden to ensure unimmunized workers are tested for COVID-19 at least once per week.
  • Require unvaccinated employees to wear face coverings while indoors or when occupying a vehicle with another person.
  • Immediately remove workers who test positive for COVID-19 from the job site and do not allow them to return to work until OSHA’s return to work criteria are met.

Other CDC Testing Requirements For Healthcare Workers

Early on, the Centers for Disease Control (CDC) prioritized healthcare workers as the first to be offered vaccines due to their frontline status. However, many in the field are also required to be immunized against other illnesses (such as Hepatitis B) and be tested for tuberculosis (Tb) before employment – requiring more detailed scheduling management of all the necessary vaccinations and screenings.

After trial and error with that timing, the CDC has settled on guidelines to help balance the need to onboard health workers with safety requirements. Employers within the healthcare industry should know that:

  • Since May 2021, COVID vaccinations can be given with other vaccines, and there is no waiting period between vaccines.
  • As of August 2021, Tb tests can be given at any time during/after COVID vaccinations.

What Employers Can Do Now

With a very hefty fine ($14,000 per occurrence) for non-compliance to this ETS, your human resources department should start performing the following actions:

  • Craft Your Policy – Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.

  • Lay the Groundwork – Prepare to ask your employees what their immunization status is or their plans for immunizations. Find out if there are any legal exemptions they may have. Work with your HR department to collect this information per your organization’s current procedures. If your company is currently hiring, consider working these questions in your post-offer medical testing process.

  • Embrace New Tools Medical Questionnaires or Electronic Health Assessments are tools that employers can utilize to help employers determine if employees or candidates meet the physical job requirements. Make sure that you are using a tool that takes into consideration OSHA and CDC guidelines. HireRight offers many sample templates that can help you assess your employees and candidates, including vaccine information.

  • Explore Testing – Once you know how many employees are not vaccinated, consider investing in and buying Covid-19 testing solutions now. Many screening companies, such as HireRight, offer Covid-19 Viral Marker Tests; however, testing supplies for rapid point of collection antigen tests are in short supply. Buying such devices in adequate quantities before the January testing enforcement date will assure you have your supplies.

OSHA’s ETS has met with legal challenges.  On November 5, 2021, the Fifth Circuit was the first U.S. Court of Appeals to issue an emergency order staying the ETS.  Other courts of appeals have since followed suit. Since cases need to be consolidated and heard, it may be a while before a decision is rendered. Further, decisions of courts of appeals may be reviewed and reversed by the Supreme Court. Therefore, while the enforceability of the ETS is in question in some jurisdictions, because of OSHA’s short runway for compliance, impacted employers should establish contingency plans in preparation for the ETS.

For more information on managing COVID risk in the workplace, and preparing for the federal mandate, see the HireRight COVID Screening Solutions Website.


Dr. Todd Simo

Dr. Simo is the Chief Medical Officer and the Managing Director of Transportation at HireRight. He served as HireRight’s Medical Director starting in 2009 and was promoted to Chief Medical Officer in 2015. Dr. Simo was also appointed to the role of Managing Director of Transportation in 2018. Dr. Simo came to HireRight with a decade of experience in the medical consulting arena. Before that he was Medical Director at an occupational health clinic in Virginia and owned a consulting firm providing medical director services to employers across the United States.

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