COVID Vaccine and Testing ETS

Businesses with at least 100 employees will soon be required to mandate that employees get vaccinated against the coronavirus or submit to weekly testing. Employers are still waiting for the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS), and some key questions have yet to be answered, but employers can take certain steps now to prepare.

ETS Timing

President Joe Biden announced the six-part “Path Out of the Pandemic” on Sept. 9. “We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America,” he said.

Among other steps, the administration will require most federal employees and federal contractors to get the COVID-19 vaccine. Biden’s order eliminated the option for such workers to opt for regular testing instead of vaccination. OSHA’s pending ETS, however, will let private-sector employers alternatively allow “any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work,” according to the White House.

When will the rule take effect? “Although the timing of when the ETS requirement will go into effect is not clear, it will likely not be a long wait,” said Keith Wilkes, an attorney with Hall Estill in Tulsa, Okla. The rule is expected to impact more than 80 million private-sector workers.

The ETS can remain in place for six months. After that time, it must be replaced by a permanent OSHA standard.

Start Planning

In light of the news, it was suggested that employers start encouraging all employees to get vaccinated to make compliance easier once the rule goes into effect. Covered employers need to quickly ramp up their infrastructure in terms of policies, administration, and tracking.

Employers also need to decide whether they will mandate vaccination or allow weekly testing as an alternative. “For some employers, collecting and tracking weekly test results may burden them such that they decide to adopt a mandatory vaccination policy,” according to Fisher Phillips.

“Regarding the tests themselves, while insurance may cover the cost of tests, several states have laws predating COVID-19 requiring employers to pay for mandatory medical tests or reimburse employees for any such testing,” Fisher Phillips said.

Mixed Reactions to Rule

In addition to potential legal risks, the main concerns employers have had in 2021 regarding vaccine mandates include resistance from employees, the potential impact on company culture and employee morale, and the possibility of losing employees in a tight labor market, according to research from law firm Littler Mendelson.

Some people have raised concerns about requiring vaccination for those with natural immunity due to a past COVID-19 infection. The U.S. Centers for Disease Control and Prevention (CDC), however, is still urging people who already had the coronavirus to get vaccinated and pointed to the results of a recent study highlighting the risk of reinfection. “The study of hundreds of Kentucky residents with previous infections through June 2021 found that those who were unvaccinated had 2.34 times the odds of reinfection compared with those who were fully vaccinated,” the CDC said. “The findings suggest that among people who have had COVID-19 previously, getting fully vaccinated provides additional protection against reinfection.”