Federal Workplace Vaccine Mandates: ‘Be Prepared’

Labor and employment attorneys are advising Connecticut employers about their responsibilities under federal vaccine mandates as compliance deadlines loom.

The U.S. Occupational Health and Safety Administration released a 490-page Emergency Temporary Standard Nov. 4, covering the Biden administration’s COVID-19 vaccination and testing requirements announced in September.

Private sector employees with 100 or more employees, federal contractors, and healthcare employees at Medicare and Medicaid-certified providers are impacted either by the ETS, an executive order signed by President Joe Biden in September, or the U.S. Centers for Medicare and Medicaid Services’ Nov. 5 interim rule.

Biden’s September executive order requires that employees of federal contractors and subcontractors are fully vaccinated against COVID-19 by Jan. 18.

While OSHA’s emergency rule, which impacts companies with 100 or more employees, is currently on hold pending several legal challenges, employers are being advised to be prepared to comply with the Jan. 5 deadline.

“We want our members to be well prepared and in a good position when and if the mandate does happen,” says CBIA president and CEO Chris DiPentima.

“There is some planning that can be happening while this turmoil is happening at the federal level around the mandate itself.”

What Are an Employer’s Options?

DiPentima spoke during a Nov. 30 webinar with CBIA HR Counsel Diane Mokriski and Carmody Torrance Sandak & Hennessey partner Vincent Farisello.

Farisello told webinar attendees most business clients either chose to implement a mandate, began the process of implementing a mandate, or ignored the ETS requirements for now. 

While the courts decide on the ETS, Farisello recommends employers: 

• Determine if they are a covered federal contractor 
• Learn and educate themselves about the ETS requirements
• Consider starting policy development or writing a draft policy
• Determine how many of their employees are fully vaccinated 
• Consider their risk profile and balance that with the probability of the mandate taking effect 

“That will be like moving a mountain to deal with that in a pinch.”

Carmody Torrance’s Vincent Farisello

“If this comes back and I am only at a 50% vaccination rate in my workplace, that is going to be like moving a mountain to try and deal with that if we are put in a pinch,” he said.

Farisello and Mokriski said that with high potential penalties, it can be risky for a business to not prepare. 

If the mandate goes into effect with the current deadlines, OSHA can ask a business for their policy and workforce vaccination information at any point.

The business must then respond within four hours of the request. 

OSHA has provided a list of frequently asked questions for employers.

Mokriski and Farisello addressed a series of questions from Connecticut employers during the webinar. 

Does an Over-the-Counter Test Count?

Over-the-counter tests, if administered or read in a certain way, do comply with OSHA’s requirement that unvaccinated employees be tested weekly for COVID-19, beginning Jan. 5, 2022.

An over-the-counter test cannot be done completely in private as it cannot be both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor. 

The COVID-19 test must be cleared, approved, or authorized, including in an Emergency Use Authorization, by the U.S. Food and Drug Administration.

An over-the-counter test cannot be both self-administered and self-read.

It must be either a nucleic acid amplification test or antigen test.

Examples provided by OSHA are tests with specimens processed by a lab, proctored over-the-counter tests, and tests where specimen collection and processing is either done or observed by an employer. 

Tests exist that allow employees to take a test at home while observed by a proctor via video conference and then sent to a lab. 

Is Pool Testing an Option?

Yes. In a pool option, an employer combines the same type of specimen (saliva for example) from a group of employees and conducts one antigen lab test on the pool.

If the test is negative, employees are considered negative for COVID-19. If the test comes back positive, employers must conduct individual testing to determine which employee or employees are positive.

Only some pool tests are approved by the FDA.

OSHA notes that only some tests are authorized by the FDA for pooled testing, which should be performed per the authorization. 

“It could be a cost-effective alternative to it, but it could also be administratively burdensome anytime you have a positive test come out of the pool,” Farisello said.

DiPentima said some companies in Connecticut who do not have high vaccination rates are looking into paying for pool testing, which costs between $30 and $50. 

Do Employers Pay for Testing? 

While the ETS does not mandate that employers pay for the cost of employee testing, employers may have to cover those costs if subject to collective bargaining agreements or certain state labor laws. 

Farisello said some states, like California and Kentucky, require employers to pay for some medical tests by law. 

In some cases, employers may also be asked to pay for testing as it falls under a “reasonable accommodation.” 

Any requirement that employers cover the cost of testing likely will come from the Connecticut Department of Labor, which is expected to release detailed guidance soon. 

Employers may have to cover testing costs if subject to bargaining agreements or state labor laws.

The U.S. Department of Labor has said in the past that an employer does need to pay employees for the time it takes to take a test that the employer requires. 

Faisello said it is especially important to keep this in mind for employers with employees that work for or around the minimum wage. For example, a mandated test cost could put their earnings below minimum wage for the week. 

It is important to note an employer can pay employees at different rates to get tested, which includes minimum wage. 

If the state mandate gives any insight, the state pays for a certain number of tests, but after that employees are on their own.

Must Employers Cover Recovery from Vaccine Side Effects?

The ETS provides that an employer must provide reasonable time and paid sick leave for an employee’s recovery from side effects experienced following any primary vaccination dose. 

If an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from vaccine side effects. 

If an employer does not specify between different types of leave (i.e., provides general PTO), they may require employees to use that leave.

However, if an employer provides different types of leave, such as vacation, sick, and personal, the employer may only require employees to use their sick leave.

An employer must provide reasonable time and paid leave for an employee’s recovery from vaccine side effects.

Employers may not require employees to borrow against future, unaccrued sick leave, nor may they require an employee to accrue “negative” amounts of sick leave.

If the employee does not have accrued sick leave, paid leave must be provided for this purpose.

The ETS does not specify exactly how much time must be provided, but the emergency rule’s preamble notes that OSHA will presume that two days paid sick leave is reasonable and compliant. 

An employer is not expected to account for the unlikely possibility of the vaccine causing a prolonged illness. In this scenario, additional time off would likely be job protected, but not paid. 

Other state or federal laws, such as FMLA or the ADA, might come into play for lengthy or serious illnesses, however that is unlikely.

Does the ETS Apply to Seasonal Businesses? 

If temporary or seasonal workers are directly employed by an employer, they must be counted when determining the 100 employee threshold, and also for compliance purposes. 

A business with 100 employees when the ETS took effect Nov. 5 is required to comply for the duration of the ETS.

If temporary or seasonal workers are directly employed, they must be counted when determining the 100 employee threshold.

An employer with less than 100 employees on Nov. 5 is not required to mandate vaccinations or testing unless and until they reach 100 employees while the ETS is still in effect. 

A golf course, for example, that did not have 100 employees Nov. 5, but hits the 100 employee mark May 1, is then subject to the ETS. 

What Defines a Fully Outdoor Employee?

Under the ETS, an employee must work outdoors on all days to be considered a fully outdoor employee and therefore exempt from the vaccination or testing mandate.

It is a tough standard to meet.

One example of an outdoor employee is someone who works outdoors during their shift, and only comes inside to use a restroom with more than one stall. 

An employee must work outdoors on all days to be exempt from the mandate.

An employee must not routinely occupy vehicles with other employees as part of work duties, including not driving to worksites together.

If there are regular, even brief meetings indoors, the person is not considered a fully outdoor employee. 

Farisello said even employees on a construction site, with a brief morning huddle indoors, may not necessarily meet the standard. 

Can an Employer Ask If a Job Applicant Is Vaccinated?

Yes, employers can ask job candidates their vaccination status, although it may not always be wise. 

Normally the Americans with Disabilities Act prohibits making a disability-related inquiry before a job seeker is offered employment.

The Equal Employment Opportunity Commission has made clear that simply asking an employee’s vaccination status does not violate that prohibition. 

Simply asking an employee’s vaccination status does not violate the ADA.

Farisello recommends employers provide information through the posting or during the interview process that the company mandates vaccinations. 

As far as the job offer itself, it is best to include in the offer letter that it is contingent on getting vaccinated, unless the candidate has a medical or religious exception. 

Mokriski and Farisello caution that new developments related to the federal mandates surface on a near daily basis. Some advice featured here may be subject to change based on new information or guidance.

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For more information, contact CBIA’s Diane Mokriski at the HR Hotline (860.244.1900) | @HRHotline.