Businesses Wrestle With Their Role in New Employee Vaccine Mandate

The new Federal mandate for COVID-19 vaccination in the workplace in all businesses with 100 or more employees is causing a mixture of relief, confusion, irritation and considerable opposition.  While some employees are happy that more of their co-workers will be vaccinated, companies are feeling the burden of more of the vaccination responsibility being placed on their shoulders.

MLive.com detailed the situation in a recent story and here are a couple of excerpts:

Here’s who will be covered by the new rules:

• The 100 employee threshold is based on the overall company total, not individual locations. This means if there’s a kiosk with one employee, but the total number of company employees is 100 or more, the business would indeed be subject to the mandate.
• Franchises that are individually owned would count their workers separate from the franchisor. The franchisor would include corporate employees, whereas the franchisee would count employees at the individual location.
• Employees who work from home or who work offsite, such as offering maintenance to customer homes, are still included in a company’s count of employees.
• Part-time employees are included in the employee count.
• Independent contractors are not included in the count.
• Minors are subject to all the same standards, although they may need parental consent for vaccination or testing.
• Vaccination status of employees does not change an employer’s count. For example, if 180 of 200 employees are vaccinated, the mandate still applies.
• Seasonal employees hired directly by the employer, not a staffing agency, are subject to the mandate. This only applies if the employer hits the 100 or more threshold as of Nov. 5, 2021. If an employer has fewer than 100 employees on the effective date, but then hires more afterwards, they are still subject to the mandate.
• The mandate does not apply to state and local government workers in states without State Plans. Because Michigan does have an OSHA-approved occupational safety and health program, MIOSHA, the mandate will apply to all Michigan government employers with 100 or more employees.
• Unionized workers at companies with 100 or more employees are subject to the mandate. The mandate does not prevent unions from bargaining for more protective measures, it only sets a baseline that must be met.

While some employers are supportive of a vaccine requirement for workers because it enhances the safety of the workplace, many do not want to be placed “in the middle” between the government and employees who object to vaccines for a variety of reasons.

Here’s some of what employers will be responsible for, according to MLive.com:

• Employers must either develop a mandatory COVID-19 vaccination policy or a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
• If an employer requires vaccination in their workplace, they cannot fire an employee who refuses to be vaccinated and agrees to be tested weekly while providing documentation and wearing a mask. Employees can refuse vaccination based on sincerely held religious beliefs and disabilities. OSHA does not prevent employers from taking disciplinary action against employees who do not comply. Employers are advised to consult applicable law and/or labor management contracts.
• Employers must create a roster of all employee, vaccinated and unvaccinated. Vaccination status should be treated the same as other employee medical records and not shared.
• Employers must have a physical or digital copy of an employee’s vaccine card or immunization records.
• Employers do not have to record booster shots in their vaccination records.
• Employees who have COVID-19 antibodies through natural immunization are not considered vaccinated and will be required to get the shot or test weekly.
• Employers must offer at least four hours of paid time if an employee chooses to get vaccinated during company time. This does not apply if an employee chooses to get vaccinated outside of business hours, such as a weekend.
• Partnering with a health organization for onsite vaccination is optional at the employer’s expense. Employers must still offer four hours of paid time for vaccination and reasonable time and paid sick leave for employees experiencing side effects.

In Michigan, 22 business associations and chambers of commerce came together to form Listen to MI Business Coalition. Before the mandate was released, business leaders voiced concerns over how companies were expected to handle requirements for unvaccinated employees and if this would cause tension between vaccinated and unvaccinated workers.

Here’s what unvaccinated employees should expect:

• In addition to being tested weekly, unvaccinated employees must wear a face mask at work. Weekly testing will continue for as long as the Emergency Temporary Standard is in effect.
• Employees in the process of being vaccinated must continue weekly testing until after two weeks from their final dose when they are considered fully vaccinated.
• The employer must retain records of each test result from each employee.
• Unvaccinated employees who work from home or report to a workplace without coworkers or customers do not have to submit weekly test results. If an unvaccinated employee plans to visit a worksite, they must receive a test within seven days prior and show results to the employer.
• Antigen testing can be used to test multiple employees at once to save time and testing resources. If the pooled antigen test comes back as negative, it can be assumed all employees tested are negative. However, if it comes back as positive, then each individual must be tested to determine who has the COVID-19 virus.
• Who pays for the testing is up to the employer, according to the mandate. Other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements may require employer’s to pay for testing.
• OSHA has determined that there are sufficient COVID-19 tests available and adequate laboratory capacity to meet the anticipated increased testing demand. If an employer is unable to comply due to testing resources, OSHA will evaluate if the business put in good faith efforts to do so or if enforcement is necessary.

                                       Details first reported by MLive.com