Recently, the Biden administration released a summary of its new rules for vaccination and testing at businesses with more than 100 employees. This new rule was previously announced in early September and is being implemented as an Emergency Temporary Standard (ETS) under the purview of the Occupational Safety and Health Administration (OSHA).
The ETS indicates that employers must comply with all requirements other than testing within 30 days, and with the testing requirements within 60 days, which would set a practical deadline of early January 2022.
While the regulation itself is some 500 pages long, the White House’s announcement highlighted key details:
- Employers must track vaccination status. The ETS requires employers to determine their employees’ vaccination status, including obtaining proof of vaccination, and to maintain a roster of vaccinated and unvaccinated employees.
- Employers must allow PTO to support vaccinations. The regulation allows “reasonable time,” including up to four hours of paid time off, to receive the vaccination dose(s). Employees are also allowed PTO or sick time to recover from side effects after each dose.
- Unvaccinated employees must be tested regularly. After January 4, employees who aren’t fully vaccinated must submit regular tests: weekly if they’re in the workplace at least once per week or within the seven-day period before they return to the office if they’re away from the workplace for a week or longer.
- Unvaccinated employees must mask. With limited exceptions, employees who are not vaccinated must wear a face covering while indoors or while in a vehicle with another employee for work purposes. The ETS also indicates that employers cannot prevent any employee from masking if they prefer to, regardless of their vaccination status.
- Employers will not be required to pay for tests. The ETS doesn’t supersede requirements from other laws, regulations, or collective bargaining agreements on this point, so some employers may still be required to pay costs if they’re covered by another rule. The ETS also notes that employers can voluntarily choose to pay for testing if they want.
- The ETS takes priority over state and local laws. In other words, employers located in states that have passed laws prohibiting employers from requiring vaccinations will still need to comply with the national requirements.
The release and fact sheet don’t cover penalties for noncompliance, but The Washington Post reports that “companies that don’t comply could face the potential of $13,000 fines per violation, or $136,000 per willful violation.”
Recent Aite-Novarica research found that uncertainty around regulation and whether to require vaccination were major concerns for a number of insurers who were considering revising their RTO plans. Many also mentioned the difficulty of balancing worker safety against varying levels of employee enthusiasm for returning to in-person work.
Preparing for Compliance
These new details clarify the federal requirement and give insurers a starting point for creating a roadmap to compliance. They also help establish a minimum safety standard and will provide some cover for organizations that may have wanted to require vaccination but were hesitant due to strong opinions around these requirements.
Implementing rules such as these can be a challenging process which requires care and attention to detail. Both federal requirements and other efforts pursued by employers are already being tested in the courts, which may make the path forward circuitous.
For insurers, the most complex parts of complying with the new rules will likely be around validating and tracking employee vaccination status in the short term and monitoring ongoing testing in the long term. That will likely roll up to human resources departments, which already have experience managing confidential information.
Some of the new process and organizational muscle built around this could have practical future benefits as well, since some scientists and medical professionals expect upcoming flu seasons to be more challenging because of suppressed immune systems due to social distancing protocols designed to protect people from COVID-19.
To learn more about how evolving regulation and changing pandemic circumstances are altering insurers’ behavior, read Aite-Novarica Group’s recent report Return-to-Office Planning: Q4 2021 and Q1 2022 Changes.
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