On Thursday, September 9, 2021, President Biden announced that he is directing the Department of Labor (DOL) to issue a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or produce a negative COVID-19 test at least once a week. The rule will allow the Occupational Safety and Health Administration (OSHA) to fine employers who fail to comply up to $14,000 per violation. The rule will be written in the coming weeks, according to a DOL official. It is a temporary emergency standard meaning it will undergo an expedited review process before taking effect, and there will be no period for public comment.
What does this mean for your organization? First, know that the rule has not yet taken effect, so you have time to prepare, and if you have fewer than 100 employees, you do not have to do this. However, if it becomes popular with your customers, you may want to do so. If you have more than 100 employees, you may want to wait for the rule to be published before requiring it amongst your staff so that you understand all the parameters and do not have to change any practices you put into place. In the meantime, it might be wise to let employees know that this will be coming so they can be prepared. You may want to start gathering information as to which employees are already vaccinated, enabling you to adapt your resources toward getting all unvaccinated employees vaccinated once the rule goes into effect. Getting proof of vaccination would also be helpful so that your process is already in place when the rule goes into effect.
The Equal Employment Opportunity Commission (EEOC) has said that employers can ask about vaccine status and that they can ask for proof. However, the Americans with Disabilities Act (ADA) requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination. This ADA confidentiality requirement applies regardless of where the employee gets the vaccination. Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from each employee’s personnel file under the ADA. So, if an employee is not vaccinated, don’t ask follow-up questions that could force employees to divulge disability or genetic information. Keep the inquiry minimal. It’s also a good idea to have a written policy in place to back it up with your policy when you ask about vaccination status.
Remember that some states require paid time off to get vaccinated. Check the laws in the states where you have employees.
This story is developing, and we will keep you updated as we learn more.