The Centers for Disease Control and Prevention (CDC) announced that the new vaccine, Covid-19, will be mandatory in 2020. Companies are struggling to figure out how to comply with this mandate without sacrificing their bottom line.
The can employers require covid vaccine proof is a question that many companies are grappling with. Some companies have already started to implement the mandate, while others are still debating what they should do.
According to employment and compensation experts, companies planning to execute the Biden administration’s Covid-19 vaccination requirement confront practical difficulties and unresolved concerns regarding how to comply.
Businesses are looking forward to the Occupational Safety and Health Administration’s official regulation, which is expected to be released in the coming weeks.
One of the greatest unknowns, according to attorneys, is who will pay the expense of testing for workers who opt not to get vaccinated. All companies with 100 or more employees would be required to demand vaccinations or at least weekly Covid-19 testing under the requirement issued last week. According to the government, employers who do not comply may face penalties of up to $14,000.
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Companies are also unsure how OSHA will establish the threshold for which companies are subject to the rule, as well as if there will be any exemptions for workers who work from home or who have religious or medical accommodations protected under the Americans with Disabilities Act.
Vaccination against Covid-19 will also be required for federal executive branch workers and government contractors under the Biden administration. According to administration officials, the new requirements would affect approximately 100 million employees, or two-thirds of all workers in the United States.
Although some companies already had or were considering vaccine requirements before President Biden’s announcement, the move puts pressure on many more to start figuring out how to comply with a rule that hasn’t been fully articulated and is likely to be met with a slew of legal challenges and conflicts with state laws.
According to employment and compensation experts, the first issue many businesses will confront is whether they want to enable workers to opt out of being vaccinated and instead undergo weekly testing. The logistics and expense of administering such tests to a large portion of a company’s employees may cause significant problems for certain companies. With some restrictions, the federal government has previously said that employers may mandate vaccinations for workers physically entering the workplace.
“Do we even want to bother with the weekly testing option, knowing how much difficulty it will cause and how many problems it will create in terms of cost and whether insurance would cover it?” Robin Shea, an employment lawyer at Constangy Brooks, Smith & Prophete LLP, was posed this question.
A protest against Sanford Health’s vaccination requirement for workers took place this week in Sioux Falls, South Dakota.
Annie Todd/Associated Press photo
Companies will have to select whether to provide their own testing services via a private healthcare provider or send workers to another location. Setting up testing may be a logistical issue for big businesses, especially in rural regions, according to Ms. Shea.
Lawyers say that businesses with hourly workers who are protected by the Fair Labor Standards Act will almost certainly have to compensate them for the time they spend being tested.
In terms of expenses, bigger firms may have more financial flexibility to fund testing programs, while smaller businesses are often limited by what their health insurance will cover. According to federal guidance, insurers are not required to cover workplace Covid-19 testing that an employer performs to broadly screen for infection. Only tests ordered by a doctor to diagnose or treat a patient, or tests given to someone who has been in contact with an infected person, are covered.
President Biden announced a six-pronged plan to fight the Delta form of Covid-19, including increased vaccination requirements for businesses with 100 or more employees, medical professionals, and government employees. Brendan Smialowski/AFP/Getty Images photo
It may be left to OSHA to determine whether employers or workers are responsible for testing expenses. Some attorneys believe that allowing workers to pay for their own testing, in addition to benefit surcharges and other measures that effectively punish individuals who refuse to get a vaccination, may be an effective incentive. Others believe it is doubtful that the government would allow businesses to pass the expenses on to employees.
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According to Robin Samuel, an employment lawyer at Baker & McKenzie LLP, the difficulties created by providing a testing option may be partially by design.
Mr. Samuel said that Biden’s aim is to promote immunization. “So testing is an alternative to vaccination, and I believe they will make it more difficult for businesses to choose for testing as a result.”
The upcoming OSHA regulation has moved the discussion from whether or whether businesses should need vaccinations to how the government should carry out its mission. Mr. Samuel believes that for some businesses that were hesitant to impose such a mandate on their employees, the president’s administrative move may be a comfort since it gives them with protection.
The most significant concern for businesses contemplating requirements has been the possibility of employee resentment and job loss. Ms. Shea mentioned opposition and demonstrations against vaccination mandates in the healthcare industry, where such requirements are widespread.
“Employers will undoubtedly have to sort through a lot,” Ms. Shea said. “Will this be a nightmare for employers or a blessing? They may now claim, “The federal government is forcing us to do it—the it’s law, and we have no option.”
Dylan Tokar can be reached at [email protected]
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