Vaccine Mandate Q&A.


In late October or early November, OSHA is expected to publish its landmark Emergency Temporary Standard, requiring employers with 100 or more workers to mandate that their staffs be fully vaccinated or produce a weekly negative COVID test result. We addressed some of the common Q&As in our last issue. Here are more answers based on current information, according to the Foley & Lardner law firm.

  1. When will the mandate take effect?

    1. Employers may be left with a very tight timeframe to come into compliance, as the ETS applicable to healthcare workers provided employers only 14 days to comply with most requirements and 30 days to comply with other requirements. The ETS will be effective until OSHA issues a permanent rule.

  2. What exceptions are expected?

    1. Employers must generally provide exemptions to the vaccine requirement for employees with disabilities or medical conditions that preclude the vaccine and those with sincerely held religious beliefs, observances or practices that conflict with getting vaccinated. The testing alternative under the ETS would accommodate those who cannot be vaccinated.

  3. Will the mandate be challenged?

    1. Yes. We do not anticipate that constitutional challenges to the vaccine mandate will be successful for many reasons, but most likely because there is a weekly testing alternative to receiving the vaccine.

  4. What do employers need to do right now?

    1. Employers should be creating a vaccination policy that complies with the anticipated OSHA mandate, i.e., requiring your employees to provide proof that they are fully vaccinated, or require them to submit to weekly testing, once the rule takes effect.

    Also, employers may want to consider whether it is in their interest to mandate vaccines for all employees and forego the testing option. Knowledge of the percentage of fully vaccinated workers will aid in this decision. Therefore, employers should begin collecting this information immediately if they have not already.

    It is also important that employers begin developing policies and best practices for collecting employees' proof of vaccination and test results as well as procedures to address requests for medical and religious accommodations.

  5. What should employers do about religious and medical exemptions?

    1. All requests should be considered on a case-by-case basis. Be prepared to address questions about accommodations by having standard forms and established processes for collecting and reviewing requests...

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