Do Private Employers have a Vaccine Mandate: Which Guidance Applies Currently? 

Earlier this month, President Biden described a six-pronged strategy to create a path out of the pandemic. Included were vaccine mandates for federal contractors and many healthcare workers. And, in addition, a requirement for all employers with 100 employees or more to ensure that their employees were either fully-vaccinated against COVID-19, or tested weekly.  Since this announcement, CorHR has been fielding inquiries from employers of all sizes confused over whether or not a vaccine mandate currently applies to them. At this time, the short answer for private employers is “Not yet.” However, there are recommended steps to take to prepare for when this status will likely change in the coming weeks. Additionally, Cal/OSHA’s Emergency Temporary Standards remain in effect for most California employers.

 If navigating employer requirements are confusing to you, let’s discuss how CorHR can help find the best path forward for your business.

When will the ‘Vaccine Mandate’ become a requirement? 

The directive for private employers with 100 employees or more would take form as an Emergency Temporary Standard (ETS) issued by federal OSHA, and impact private employers including office-based employers that wouldn’t regularly interact with OSHA otherwise (e.g. professional and technical work environments, law firms, financial institutions, etc.). Once issued, the ETS would have immediate effect in the 29 states where federal OSHA has direct jurisdiction, and can remain in place for six months before it must be replaced by a permanent standard.   It is important to note however, that California is a “state-plan” state, where Cal/OSHA has direct jurisdiction. Hence for California, Cal/OSHA would have an option to adopt fed OSHA’s ETS or enact “just-as-effective” measures within 15 to 30 days.

Would any roles qualify to be excluded from consideration for either a vaccine mandate or weekly testing?

Although we have yet to see what comes from fed OSHA or Cal/OSHA, it appears reasonable to presume that employees that solely work remotely (i.e. from home, etc.) would not be impacted by these changes so long as they don’t ever come into the office or interact with others face-to-face to carry out their work responsibilities. However, employees with a hybrid work schedule for example, even where they come to the office on an occasional basis, would need to be included in consideration by the employer.

What steps are recommended at this time for private employers to take?  

We recommend that employers consider implementing the following steps to prepare for what’s ahead:

  1. Adopt procedures for determining employees’ vaccination status. You may require proof of vaccination and must keep this information as a confidential record, apart from the personnel file.
  2. Review all roles for your business and determine whether you will mandate vaccination for any roles, or whether you will instead allow unvaccinated employees to be tested weekly.  Consider the burden to your business to collect and track weekly test results, and the logistics to provide time to test, payment to test and the identification of test vendors.  Under both federal and state laws, private employers may require vaccination as a condition of continued employment in order to keep your workplace safe from the threat of COVID-19.
  3. Develop a plan to track test results.  Consider who will have the responsibility to collect and track results, and turnaround timeframe.
  4. Have a plan to address noncompliance.  If you have employees that refuse to comply with wearing face coverings now, whether properly or at all, consider how you plan to handle a situation where an employee refuses to get vaccinated or tested.
  5. Determine your plan to address accommodation requests.  Employees may request an accommodation for a medical disability or religious reason, including from the weekly testing requirement. They must be allowed to participate in an interactive dialog with their employer to determine whether a reasonable accommodation can be implemented. An accommodation process must be confidential and emphasize thoughtful individual consideration.
  6. Review and update your COVID-19 Prevention Plan (CPP).  If your business didn’t put this together yet, or didn’t update your plan in June, now is a good time to do just that. Be sure to include an emphasis on protocols to prevent and mitigate workplace exposure – whether by employees or visitors, along with steps you’ve taken to train employees to distance and mask.  Include your response to notification of exposure and policy communication with employees and workplace visitors. Further, describe what recordkeeping you’ve maintained to identify employee vaccination status and how that information is being maintained.

What requirements are in place currently for private employers in California?

On June 17, 2021, Cal/OSHA last updated Emergency Temporary Standards (ETS) for workplaces. To summarize, these updates took into consideration employees that were fully-vaccinated, and whether or not they would be required to continue to wear face coverings either indoors or outdoors. Cal/OSHA also updated guidance on whether or not fully-vaccinated employees would need to be tested or quarantined after close contact with COVID-19 cases, if they didn’t display symptoms. Further it included a requirement for employers to document fully-vaccinated status for their employees, amongst other requirements. You may reference specifics at:  Cal/OSHA Revised ETS-FAQ. As of yet, these ETS have not been further updated. However, since June, some counties and cities located north and south in our state have enacted more stringent requirements requiring face coverings in indoor locations, public or private, regardless of vaccination status. Employers of all sizes are required to follow the most stringent rules that apply to their workplace to protect employees.