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3 things employers need to know about mandated COVID-19 vaccines


In a September 9 speech, President Biden announced that private employers with 100 or more employees will need to ensure that employees are either vaccinated or tested for COVID-19 weekly before coming to work.

Details will be spelled out in a forthcoming emergency temporary standard (ETS) from the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), expected sometime in late October.

While there are a lot of unanswered questions about the anticipated ETS, employers may want to start considering what steps they will need to take to prepare now. Below, are answers to three questions employers are asking about the vaccine mandate:

1. Are employers required to provide paid time off?

The initial announcement included a reference to paid time off for the time it takes for workers to get vaccinated, or the time it takes to recover if they are under the weather post-vaccination. The announcement did not, however cover paid time off for testing. For insight on that, look to current law.

Employers commonly ask if they must pay for an employee’s time to attend a medical appointment (such as a mandatory drug test). Essentially, if the employee is seeking any type of medical attention at an employer's direction, then the time must be paid.

The Department of Labor regulations for hours worked state: Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when he is working constitutes hours worked.

For example, if an employee is injured at work, and the employer sends the employee to see a doctor for evaluation, the employee is acting under the direction of the employer. That time must be paid. However, it is yet unclear whether employers could require employees to use their sick/PTO time to cover the absence for a vaccine.

2. How should an employer communicate with employees about this?

Employers may let employees know that all health and safety requirements need to be met. This includes requiring vaccinations, testing, and accommodations, as required by law.

As details on federal vaccination/testing requirements are not yet available, it is fine to let workers know that you are monitoring the situation and will make them aware of developments.

Designate a point person to be responsible for further communications. Use emails, web page updates, and text messaging to make workers aware of updates.

If workers express concerns about a new vaccination or testing requirement being implemented, acknowledge these concerns. Let employees know they are valued and that you will keep them updated on all requirements.

3. What is the penalty for non-compliance?

While not all details have been released, businesses that don’t comply with the vaccine mandate or paid-time-off requirement could face fines up to $14,000 per violation.

Many unknowns remain

Until the ETS is issued and legal challenges are addressed, many unanswered questions will remain. How much paid leave is required, and when? Will reporting be required?

Despite the lack of clarity on many essential issues, including whether the ETS will survive legal challenges, employers may wish to make decisions now. Those already considering requiring testing or vaccines may want to continue to do so, while those hoping to avoid them may decide to wait for further information. No matter what, it’s essential for all employers to be prepared.