The OSHA standard for emergency vaccines is here. Are employers prepared for this mandate and future ones? : Risk & Insurance


Lainee Beigel is Senior Vice President at EPIC Insurance Brokers and Consultants based in the North East. She is currently responsible for emerging and technical risks for executive risks and cybersecurity. She can be reached at [email protected]

September 9 President Biden announced six-part COVID action plan. Key to the plan is an OSHA Temporary Emergency Standard (ETS) rule that would require all employers with 100 or more employees to report to work each week with a negative COVID test if they are not. vaccinated.

The rule will also require employers to give paid time off to employees receiving the vaccine and time to recuperate if an employee does not feel well afterwards.

These rules will impact compliance with benefit and labor law under OSHA, HIPAA, EEOC, and GINA. New administrative responsibilities will be established for employers who wish to comply, and employers will need to be prepared with vendor solutions.

The rule would ultimately impact 100 million workers in the private sector who have not yet been vaccinated. Employers who do not comply will most likely face a fine from OSHA. The rule includes a mandate that employees of contractors who work with the federal government must be vaccinated.

Also included are employees of health facilities who receive reimbursements from Medicare or Medicaid. Biden’s plan also includes measures to keep schools open and would require vaccinations for school staff. It also aims to make testing more readily available and would offer loan support and PPP loan remission to small businesses.

There are many unknowns, including the impact this would have on working environments with unions.

COVID-19 action plan: legal repercussions are likely

Biden’s course of action will face legal challenges, with a likely argument that his directive violates the separation of powers between executive, judiciary and legislature.

Challengers can also attest that the rule does not allow states to maintain their right to set their own health care policies. Potential lawsuits may also argue that it violates the 14th Amendment right to personal liberty. However, the ETS is not aimed at individuals, but at businesses, so it is unlikely to withstand legal scrutiny.

There is also the question of whether this is beyond the powers of OSHA’s authority and its rule-making power under the Occupational Safety and Health Act of 1970.

By including the possibility of being tested, the rule makes it possible to accommodate those who refuse vaccination for medical or religious reasons. There does not appear to be any religious belief or disability that would prevent testing, making the testing alternative more legally acceptable.

The state of Arizona has previously filed a lawsuit that challenges the rule, saying it exceeds Biden’s executive authority and violates the Constitution’s equal protection clause through discrimination.

It is stated in the lawsuit that the Department of Homeland Security simply offers the vaccination to detained persons entering the United States illegally but does not require it. This is noted as discriminatory against US citizens who would be under warrant.

The Arizona District Court may rule that this lawsuit filed by the AG is too early, since the ETS has not been issued. It will likely take weeks, if not months, for OSHA to announce its decision. In the meantime, opponents will likely work on their legal strategies.

During this interim period, assuming the ETS goes ahead, there are plans that employers can develop under these suggested initial guidelines.

  • Ensure that a vaccination policy allows qualified exemptions / ADA compliance – communicate the policy clearly within the organization and apply the policy consistently to everyone, at all levels, within the organization .
  • Provide a clear timeline for completion and be flexible with PTO / sick time to allow employees to receive and collect vaccine.
  • Consult with a lawyer to make sure you are carrying out the procedures correctly and seek their advice in the language.
  • Follow the law closely as it changes daily and update policies, procedures and protocols accordingly.
  • Establish how proof of vaccination is to be provided and how it will be kept confidential and secure.
  • Begin to consider timing and implementation of possible recall mandate requirements / policies.
  • Review / revise all overlapping operational and employment policies – employee manual, employment contracts, document retention, etc.
  • Be prepared to think about how to handle the need for employees to present proof of vaccination versus certification.
  • Note that the CDC’s quarantine guidelines differ based on vaccinated status, which would impact contact tracing and the quarantine periods in place.

If the ETS is not implemented by OSHA, there remains the issue of immunization mandates on an individual employer basis. Clear communications are essential and should include a clearly stated written policy. There must be exceptions for religious beliefs and disabilities.

Since the Pfizer vaccine received full FDA approval, many employers have taken a closer look at the implementation of mandatory vaccinations. Delta Airlines, for example, have gone so far as to impose a monthly surcharge of $ 200 on health insurance premiums on employees who are not vaccinated. Other airlines are pushing vaccines into this hard-hit industry.

Without the support of the OSHA rule, if it does not materialize, employers will be forced to determine which strategy is best with the participation of human resources, benefits advisors, insurance brokers and advisors. legal. This may include the management of deductibles reimposed by health insurers for COVID, which had been canceled for high hospital deductibles. &

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