WHAT I WOULDN'T DO: Legal Updates from HR's Trenches.

AuthorHyman, Jon

The mandate: To test or not to test, that is the question

OSHA's "vaccine or test" emergency temporary standard requires that every employer with 100 or more employees make a choice--require all employees to be fully vaccinated against COVID-19 by Jan. 4, or permit those employees who do not want to receive the vaccine to provide a negative COVID test on a weekly basis. (Unvaccinated employees must also wear a facial covering indoors while at work, with limited exceptions.)

The question for employers is which choice to make: require vaccines for all, or permit employees to opt out and test in lieu. There is no one-size-fits-all solution, and each employer will have to choose what's best for its business.

Here are four questions to ask yourself to help guide that decision:

  1. How will your employees respond if you mandate the vaccine for all? We need to keep in mind that we are in the midst of The Great Resignation. If too many employees quit because you are requiring them to get vaccinated, will you (a) be able to fill those vacancies quickly, and (b) if you cannot, will you be able to operate? If not, then you should strongly consider permitting employees to opt out and test.

    You may not know, however, how many employees will quit, until it is too late. So I recommend surveying your workforce to determine their intent if you mandate. That data will let you make an informed decision about whether to mandate for all.

  2. How many employees need reasonable accommodations? The ETS makes clear that the appropriate reasonable accommodation from the vaccine mandate is weekly testing. If enough employees need such an accommodation, it might be simpler to provide that option for all.

  3. Do you want the administrative burden of collecting and maintaining weekly test results? If you allow...

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