How to Navigate the Proposed Federal Vaccine Requirements for Employers

The Biden administration recently issued the following executive orders for the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS):

• Requires employers with 100+ employees to be vaccinated or tested weekly
• Requires vaccination for federal workers and contractors that do business with the federal government
• Requires vaccination of all healthcare workers at Medicare and Medicaid participating hospitals and other healthcare settings
• Calls on larger entertainment venues to require proof of vaccination or testing for entry

During a recent Greater Des Moines Partnership webinar, speakers focused on the vaccine requirements for businesses with more than 100 employees recently announced by OSHA What do these proposed employer requirements mean for your organizations? What responsibilities do you hold as an employer? Mary Funk, shareholder at Nyemaster Goode, P.C., and Glenn Spencer, senior vice president of the employment policy division with the U.S. Chamber of Commerce, spoke with Greater Des Moines Partnership Director of Public Policy Ryan Moon about the topic.

OSHA Penalties

Spencer said the ETS will be enforced in three ways:

1. OSHA comes in and inspects the workplace, asking to see proof of vaccination or testing results
2. Someone (customer/vendor/etc.) could file a complaint, sparking OSHA to inspect the workplace
3. Internal whistleblower

If OSHA finds noncompliance, there will be significant penalties per employee. Therefore, the number of employees who are not following the rule can each be given a citation as opposed to one citation for the company. Under current law, those penalties are around $13,600 per violation; however, in the reconciliation bill going through congress, those penalties will go up significantly if the bill is passed.

Employer Obligations

Employers, Spencer said, must keep paper or electronic copies of both employer vaccine cards or test results. Test results must be provided by the employee every week. The employer has an obligation to inform employees that they need to provide truthful information. Funk said if an employee’s card or test is lost or stolen, that employee can sign an attestation, or a declaration that they are providing truthful information in having been vaccinated. This is a temporary hold while the employee tries to get a duplicate card.

Payment of Weekly Testing

If an employer wants to allow weekly testing as a substitute for vaccination, under the rule the employer does not have to pay for or provide the testing. The employee has to pay for that unless they have a religious exemption. Funk said that the types of testing the ETS recommends are diagnostic, which does not include self-administered tests. This is to ensure authentic test results. Spencer said the employer does not have to provide time off, but state law may vary on this.

Other topics discussed throughout the webinar include whether employers can mandate vaccines leading up to Tuesday, Jan. 4, how the ETS affects remote and outdoor workers and more.

Watch the entire webinar below:

 

Count on the Greater Des Moines Partnership for economic recovery information and business and industry recommendations as the region moves forward from the COVID-19 pandemic. Learn more about current impacts and future trends from the DSM Forward playbooks here.