Before an employer asks employees for vaccination information, should they wait until the government imposes a vaccine mandate?
Legal experts have advised that organizations should prepare as though the OSHA rule is going into effect. The bottom line is if you don't prepare, and the court moves the mandate forward, you will have even less time to get compliant.
Should I focus on the federal mandate or my individual state’s regulations?
According to legal experts, the federal government is backed by the Supremacy Clause of the US Constitution. Ultimately, the federal law is going to take precedence over the state law.
Do I have to include part-time or seasonal workers in the vaccine mandate?
Regarding the proposed OSHA ETS for organizations with 100 or more employees, all employees are counted. That includes students, volunteers, part-time and seasonal employees.
Should we impose a vaccine mandate or just offer weekly testing?
Under the proposed OSHA ETS, the employer has the choice to require everybody to get vaccinated, or to get tested weekly. We recommend that you give people the choice.
Can I make an employee a 1099 contractor to avoid the vaccine mandate?
It can be hard to meet the requirements of a 1099 independent contractor. Most of the time, the Department of Labor concludes that a person should be an employee. Legal experts don't recommend changing the employment contract just to avoid the vaccine issue.
Are remote workers subject to vaccination mandates?
Someone who works at home 100% of the time can be exempt from workplace vaccine mandates. But that’s if they never come into the office. If they come in once a week or occasionally, they would fall under the same guidelines as other office-based employees.
What data should you track?
Follow what’s on the CDC Covid vaccination card. Get the employee’s name, the manufacturer, and the lot numbers. Have a secure, reliable system to protect the information. You don't have to be a document expert, but you obviously can't accept inauthentic or forged documents. If Moderna is not spelled right, or Pfizer is not spelled out, or if the dates don't really match up, that should be a red flag. Employers need to make sure that it's an authentic card.
Is vaccine information subject to HIPAA?
If an employer asks an employee, “I need to know if you're vaccinated,” there is no HIPAA violation in that question. However, care should be taken when asking follow-up questions, such as why an employee has not been vaccinated.
How do you handle an employee who refuses to answer if they are vaccinated or not?
The best response is to say, “If you can't show us proof of vaccination, we're going to have to regard you as unvaccinated.”
Can we use the “honor system” and simply ask our employees if they have been vaccinated or not?
At the very least, the employer needs to see the card and capture the information. OSHA is going to expect that you've seen the cards. So the honor system by itself isn’t enough.
What’s the best way to deal with angry employees?
Educate your company leaders on how to effectively respond. The number one objective at this point is to gain buy-in. You can't control the range of employee emotions; the only thing you can control is your message. Work with your leaders and give them space to express what is on their mind so that they can turn around and effectively lead.
What’s the best way to notify employees of COVID exposures at work?
First off, do not send a mass email. Be cautious and do not disrupt the workplace. Follow the contact tracing. Maintain confidentiality. Say something like, “You may have come in contact with an individual that has either been exposed or has COVID.”
How do you handle an employee threatening to quit due to a vaccine mandate?
First, validate that person's feelings. Always listen, show empathy, and try to understand their position. Once someone feels they’ve been heard, the situation should de-escalate. Next, try to provide some incentives around getting vaccinated or agreeing to weekly testing.
For more information, Engage by Cell recommends visiting the OSHA Emergency Temporary Standard FAQs.
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