The Vaccine Mandate

HR leaders share how to navigate these unprecedented times in order to keep the workplace safe and retain key talent.

By Debbie Bolla

The White House’s September 9th announcement of an impending vaccination mandate or weekly testing requirements for employers with 100 or more employees wasn’t as pressing for Abby Hamilton, Chief People Officer of LiveIntent, as it was for other HR leaders. “With our primary U.S. office being located in NYC, we had already taken guidance from the governor and announced that in order for employees to use the office, the employee must be vaccinated or present a negative test prior to coming in,” she says, noting they are partnering with Eden Health to track vaccination status in a secure way. “The health and safety of our people come first. We have kept this value as the key in all decisions we have made throughout the pandemic to date and will continue to do so by following the guidance of the CDC and medical professionals.”

That being said, LiveIntent is not mandating a return to the office for all employees in 2021. “We have made arrangements and investments throughout the pandemic to make LiveIntent a truly remote workforce,” she says. “These requirements are for voluntary office use only.”

WorkForce Software is taking a similar approach. “We’ve been fully transparent about the company’s intent to comply with the Administration’s vaccine mandate because it has a big impact on the workplace,” says the organization’s SVP of Human Resources Leslie Tarnacki. “We’ve made it clear that our first concern is the health and safety of our employees, as it’s been since the very beginning of the pandemic. Employees know that when we officially reopen our offices, they will need to provide proof of full vaccination or a weekly negative COVID test to return to the office or to attend customer, partner, or prospect in-person meetings.”

But the company is also offering the option of ongoing virtual work to support employee preferences. “Based on recent surveys we’ve conducted, employees have been given several opportunities to communicate their vaccination status, concerns, and plans for vaccination and returning to the office, so there is a full understanding of how things will work for business and how we’ll be able to continue to execute well and grow in the coming months,” explains Tarnacki. “Vaccination requirements have become a somewhat polarizing issue, so we’re doing all we can to communicate and promote transparency around the topic.”

It’s a complicated issue and HR leaders have a lot to consider when keeping their workforce safe while trying to retain their talent. Prior to the announcement, 88% of employers were planning to require or encourage vaccinations, according to the 2021 Back to Workplace Survey. In a September 1st Willis Towers Watson survey of nearly 1,000 companies, 52% of respondents said they planned to have vaccine mandates by the end of the year, compared with 21% that said they already had vaccine requirements. The same survey found that 6 in 10 (59%) currently track their employees’ status while 19% are planning to do the same later this year.

Clearly many organizations were already considering making vaccinations required for in office employees. But then came the announcement. According to the White House’s Path Out of the Pandemic, “the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that requires all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.”

Who is ultimately impacted? “While the President’s plan takes a six-pronged approach to tackling the pandemic, there are three primary vaccine mandates that employers should take note of: the mandate for federal contractors; the mandate for Medicare- and Medicaid-certified healthcare facilities; and private employers with 100 or more employees,” explains Amy Traub, chair of BakerHostetler’s Labor and Employment Group.

Reactions since the announcement have varied. A survey from the Committee for Economic Development of The Conference Board (CED) found that nearly two-thirds of respondents support the new vaccination and testing requirements but around 30% believe the decision has negatively impacted their employees and overall company culture. There are also concerns over execution. More than half of respondents believe it will be difficult (40.5%) or very difficult (15.3%) to successfully implement the new testing or vaccination mandate within their company.

These concerns are not unfounded as there are clear logistical and personal challenges ahead. “While we do not know for certain what the Emergency Temporary Standard will dictate concerning issues such as proof of vaccination, reporting requirements, whether employers must pay for testing, how much paid time off will be required, whether exemptions will be allowed, etc., employers can begin preparing by determining coverage,” says Traub.

Traub notes that OSHA has yet to issue the ETS, but on October 12th, it announced that it had sent the ETS to the Office of Information and Regulatory Affairs (the White House’s regulatory office) for review. After OSHA receives an approval from the Office of Information and Regulatory Affairs, it will be able to publish the ETS and it will take effect immediately. Traub says that HR leaders can prepare for the impending ETS by:

• surveying current employees on vaccination status,
  where permitted, to get a better understanding of
  workforce statistics;
• considering PTO requirements (whether any current PTO offered by the company could be sufficient); and
• addressing the company’s remote workforce.

Engage2Excel’s Trendicators special report, Preparing for the Vaccine Mandate, also shares ways to be ready for the ETS and manage compliance.

• Start planning now. OSHA’s ETS is pending approval, which falls in line with the original expectation of it coming out within 30 and 60 days of the announcement. HR leaders need to have the necessary means to remain compliant by that deadline. Once issued, it can remain in effect for six months before being replaced by a permanent OSHA standard.
• Develop and communicate company policy. HR leaders will have to decide if it’s best to institute a company-wide mandate, or if weekly testing will be allowed as an alternative. With testing comes logistical (and perhaps costly) challenges, including collecting and tracking test results, and the actions required if positive tests are revealed. For testing, organizations should decide which type of test is required: rapid, PCR, or an at-home test. Per FLSA regulations, employees must be paid for the time away from work to be tested and wait for results, but organizations can require these employees use their existing PTO. With vaccinations, organizations will be expected to provide paid time off for recovery. Employers will also need to outline what constitutes as proof of vaccination and track in a safe and secure way.
• Create a policy for exemption requests. Employees can refuse the vaccination based on religious beliefs or approved medical exemptions. Organizations should build a policy around the required verifications of such exemptions. Currently, political and philosophical objections aren’t covered by federal anti-discrimination law.

To require vaccinations, to allow for weekly tests, to reopen the office, to stay remote. These are tough decisions for HR to make. “You’ll never please everyone in such divided times. That can either intimidate an HR leader or invigorate them,” says Hamilton. “It’s our job, as HR leaders, to think about what is best for people as individuals and to try our best to keep everyone safe and healthy, both physically and mentally. Being vigilant about what truly matters—people—makes the process of hard decisions easier.”