Mandatory Vaccination Policy

To vaccinate or not to vaccinate? That is, apparently, no longer the question...it's a requirement.

If you're feeling confused about the specifics of the official guidelines of the mandate, you're a part of the majority. We've curated a comprehensive guide that will answer all your questions about what we know so far, what to expect and how to be prepared when the official rule goes into effect.

• What is the mandate?
• How have mandates worked in the past?
• What is an ETS and how will it affect privately-owned businesses?
• What consequences will employers face for non-compliance?
• Costs: Who is responsible for what?
• How will exemptions work?
• What does an effective mandatory vaccination policy include?
• What information are we still waiting on?

In lieu of an inevitable vaccine mandate, many employers say they’re worried about the impact a mandate may have on their company culture or employee morale. A negative impact is more likely if both employees and employers are still fuzzy on the facts about the mandate, what it is and how it works. We’ve gathered all the information you need to know to ensure your company creates and implements a mandatory vaccination policy with as few bumps in the road as possible.

Early last month, the Biden administration released its plan for the Path Out of the Pandemic which included a vaccine mandate that would affect over 100 million Americans. Employees of privately-owned businesses are estimated to represent approximately 80 percent of those affected. Other workers and entities affected by the mandate, but are NOT ruled by OSHA, will include federal workers, healthcare workers and physical spaces that host large gatherings like sports arenas, concert halls, etc.

“We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us. The unvaccinated minority can cause a lot of damage, and they are.” 

- President Biden

In addition to leaving many feeling upset and confused by vaccines no longer being optional, it’s safe to say the announcement also left us all with a few vague answers and many important questions. If you’re someone who will be enforcing the mandate at your company, you’re probably wondering things like; when will it go into effect? What consequences will employers pay if they choose not to comply? How will you facilitate testing vaccine tracking? And the most burning question of them all...how do religious and medical exemptions work? If you’re feeling confused about the specifics of the mandate, you’re certainly not alone.

First, let’s start out with the basic facts.

What exactly is the mandate? What does it entail and how exactly do vaccine mandates work?

WHAT IS THE MANDATE?

At the beginning of last month, President Biden’s executive order, Path Out of The Pandemic, called on three types of workforce entities to implement a mandatory vaccination policy; federally-owned businesses, federally-funded businesses and private-sector entities with one hundred or more employees. Each type of entity is covered by a different organization -- private-sector entities are ruled by the Occupational Health and Safety Administration (OSHA). 

But the executive order doesn't officially put the mandate into effect. Thousands of businesses across the country are still waiting for OSHA to issue an Emergency Temporary Standard (ETS) that will officially put the mandate into effect - expected to be finalized within the coming days. For nearly two months now, OSHA has been developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated. 

Private-owned businesses will have the option to offer an alternative for employees who choose to opt-out of getting The executive order stated that privately-owned businesses will have the option to offer an alternative for employees who choose to opt-out of getting vaccinated. Workers who remain unvaccinated will be required to submit a negative test result on a minimum weekly basis before coming to work. Federally-owned and funded businesses will not be given an alternative option, their entire workforce must be vaccinated. Both employers and employees who choose not to comply are up against some pretty severe consequences. The ETS to be issued by OSHA is projected to affect over 80 million workers in private-sector businesses.

HOW HAVE MANDATES WORKED IN THE PAST?

The conversation about mandatory vaccines is nothing new to us here in the U.S. Vaccine mandates have been a touchy subject for as long as they’ve been around, but the pandemic has forced us all into this conversation at once for the first time in most of our lifetimes. It’s likely that very few people, if any, who had experienced the 1918 pandemic are still around, so it can be easy to feel like everything about the pandemic is a first-time occurrence. A nationwide call for people of all ages to all get vaccinated at once may seem like a nuanced or modern concept, but vaccine mandates have been around in the United States since the Revolutionary War. 

At the start of the American Revolution, smallpox was responsible for nearly one-third of American deaths. George Washington issued an army-wide mandatory vaccination against the disease, the first vaccine mandate in our country’s history. The first official vaccine mandate issued on a federal level by the Supreme Court was in 1905 against smallpox. As of 2019, all fifty states mandate the vaccines against MMB and every state, with the exception of Alabama and South Dakota, mandate vaccines against Hepatitis B.

Many have questioned the ethics of mandating the COVID-19 vaccine. Under the Principle of Patient Autonomy in Medical Ethics, patients in the United States have the right to make decisions for their own health without undue pressure. The Principle of Patient Autonomy goes on to elaborate that declining treatment, testing or preventative measures is a fundamental right. So how is a vaccine mandate even allowed? Well, the principle also stated that an exception is made when the individual’s decision to decline treatment creates the possibility of causing harm to someone else, and declining the COVID-19 vaccine has proven to be a high probability of harming others.

HOW A MANDATE CAN ACTUALLY BENEFIT EMPLOYERS, EMPLOYEES & THE ECONOMY

Although many companies have already put their own vaccine requirements in place, some have been reluctant to require employees to vaccinate due fear that it may decrease their chances of finding candidates in an already increasingly competitive market. A recent study shows that most employers want their employees fully vaccinated and are in favor of the ETS, saying it would take the pressure off of them to make a decision that may upset some of their current staff. Although a vaccine mandate can stir up it’s fair share of controversy and push-back, it can also offer many benefits to employers, employees and the economy. 

Benefits for employers:

A government issued mandate takes the responsibility off of employers. If your mandatory vaccination policy upsets employees, a mandate gives you the ability to say, “The government is making us and it’s out of our hands”. Additionally, some sources say that benefits of a mandate as a preventative healthcare measure would outweigh the workers' comp costs of vaccine injuries.

Benefits for employees:

If there’s one thing we can all agree on, it’s that navigating new challenges and adapting to new working conditions hasn’t been easy. While many of us have spent the past year struggling with clunky Zoom calls, technical issues and lack of socialization, the urge to get back to in-person collaboration is continuously increasing. Employees can feel like they’re coming into a safe environment. This is especially a relief for workers who have children at home not eligible for vaccines and those who have family members who are immunocompromised.

Benefits for the economy:

Vaccine mandates have a history of boosting the economy and the COVID vaccine specifically is projected to bring many fruitful benefits to the US economy. Many economists say that the economy isn't likely to fully recover until the public health crisis is contained (i.e. as many people as possible get vaccinated).

HOW WILL OSHA’S ETS EFFECT PRIVATELY-OWNED BUSINESSES:

As of October 18, approximately 57% of the US population has been fully vaccinated, 65.9% have received their first shot and 43% have not been vaccinated at all. It’s estimated that US workforces affected by the mandate make up about half of the unvaccinated 43%.

Of all entities affected by the mandate, privately-owned businesses are the only entity allowed to offer weekly tracking as an alternative to vaccination. What does this mean for these employers? Well, to a certain degree, it’s up to them. Each individual business is allowed to curate and implement it’s own custom mandatory vaccination policy as long as it complies with the rules set by OSHA. 

Even though privately-owned businesses are allowed to alternatively offer weekly testing doesn’t mean they will choose to do so. Tracking weekly testing can become time-consuming and subsequently, costly to the employer. Companies that do not already have a mandatory vaccination policy in place will be forced to find solutions for tracking vaccinations and testing if they choose to include it. The ETS will give employers the legal right to terminate any employee who refuses vaccination or testing. Employers will inevitably face tough decisions when it comes to employees who resist compliance.

For employees who choose not to comply, employers will be forced to choose one of two grim options; terminate the employee or face some pretty extreme fines, up to $13,653...per violation (the maximum amount that OSHA can penalize a business). What constitutes a single violation is still unclear. It could mean per employee, it could mean per time period. Regardless, when faced with the decision to pay upwards of a $13,000 fine to keep a non-compliant employee...one can predict that luck won’t be on the side of the employee.

WHAT CONSEQUENCES COULD EMPLOYERS FACE FOR NON-COMPLIANCE?

A survey by The Associated Press-NORC Center for Public Affairs Research found that about 59% of remote workers are in favor of a mandatory vaccination policy at their workplace.

Employers who choose not to comply with the requirements of the mandate could face fines upwards of $13,000 per violation. Whether a violation equates to an individual employee, period of time or something else is still unclear. While we’re still waiting on official and more detailed guidelines from OSHA, we can likely all agree that no one wants to pay a fine upwards of $13,000, no matter the reason. Many employers will be left with no choice but to terminate the employment of any staff that chooses not to comply with vaccination or testing requirements.

Ultimately, employers will need to find solutions to tracking both vaccinations and testing. At IncentFit, we’ve offered a tracking solution for flu shots and other required medical documentation since 2014. When buzz about the mandate started to circulate, we were able to build a vaccination and testing tracking solution that had already been proven effective, simple and streamlined for our clients. Our newest product offers employees the ability to upload their required documents directly through our mobile app, submit exemption requests and receive incentives or rewards for completing their requirements.

COSTS: WHO IS RESPONSIBLE FOR WHAT

As far as who’s responsible for costs associated with vaccination, employers are required to give employees paid time off to get vaccinated and recover from any vaccine-related side-effects. OSHA has yet to officially announce whether employers or employees will be footing the bill for testing. Unfortunately for employers, regardless of who pays for tests, testing will incur costs for employers regarding the time and solutions they will need to implement to facilitate tracking.

We’ve recently launched a new product that seamlessly allows employers to not only track vaccination and testing, but incentivize and reward their employees for completing their requirements! Our flexible pricing is calculated by the number of employees at your organization and can be lowered when bundled with other products. If you'd like to learn more about our tracking solution, get in touch with a member of our team or schedule a demo today.

EXEMPTIONS: HOW DO THEY WORK?

The most ambiguous component of the mandate that has us all in a hazy cloud of confusion are exemptions, especially considering that the executive order had no mention of exemptions or accommodations. Exemptions have always been at the forefront of the conversation when it comes to vaccine mandates, but President Biden's Path out of The Pandemic has many frantically searching for definitive answers about how it will all work.

Here’s what we know for sure:

• Employers are required to allow employees to submit exemption requests, but are not required to put an exemption request process in place.
• Employers are not required to accept exemption requests, but they are required to give each request sincere consideration and explore reasonable accommodations for denied requests
• If possible accommodations would cause undue burden on the operations of the company (i.e. if accommodations are costly, compromise workplace safety, decrease workplace efficiency, etc.) they are considered not reasonable. Unreasonable accommodations may result in termination of employment if the employee still refuses to vaccinate or conduct and report their weekly test results.
  • Our new vaccination and testing tracking product offers an exemption request template for employers to use if they choose to require testing as an alternative.

Although employees are allowed to submit a request for a religious or medical exemption, at this time, there are currently no known religions or religious beliefs that prove to conflict with the COVID-19 vaccine. As far as medical exemptions go, the only qualifying exemption recognized by the FDA is a known history of severe allergic reactions to any ingredient of the vaccine.

HOW TO IMPLEMENT AN EFFECTIVE MANDATE AT YOUR COMPANY

Some key points to consider when creating your mandatory vaccination policy:

• For private sector entities, as long as it complies with the rules set by OSHA, however you’d like.
• The deadline to have your entire workforce vaccinated is still not set in stone. Although we’re anticipating a lengthier timeline, it’s best to be prepared to implement your policy sooner than later to avoid any hiccups or possible fines due to missed deadlines.
• Although employers are allowed to offer weekly tracking as an alternative to vaccination, they are not required to. It is entirely up to the employer whether or not they would like to offer this option.
• Under the law, employers are required to allow employees to submit exemption requests, but they are not required to accept them. 
• The ETS will NOT require completely remote workers to get vaccinated or comply with weekly testing to remain employed. This rule does not apply to any remote workers that plan to come into the physical workplace at any point.
• If an employee submits a positive test or reports that they’ve been infected with coronavirus, they will not be permitted to come to the physical workplace and will be required to work from home if possible. If working from home is not a possible option for the employee, it is not yet clear when the employee will be allowed to come back to work. It is also unclear if the employer will be required to provide PTO or the employee will go without pay for the time needed to recover from the virus.

INFORMATION WE’RE STILL WAITING ON:

What is the exact date the mandate will go into effect and how long do employers have to fully meet the mandate requirements?

Unfortunately, we don’t know the exact date that the mandate guidelines will officially be set. An article by Fortune suggests we should anticipate the ETS to go into effect late October, but enforcement may not begin for 75 days or so. What we do know for sure is that the more prepared employers are, the better and easier the entire process will be. 

• For employees that choose not to get vaccinated, how long will employers have to facilitate testing?
• Who pays for testing?
• What fines will employers pay for not complying?