COVID-19 (SARS-CoV-2) has changed many aspects of life in corporate America and every day new information, recommendations, and now mandates arise that require that we be diligent in our approach to health, safety, and regulatory compliance. We have compiled the following information to help private employers make sense of this ever-changing landscape and retain employees through health and safety programs that benefit everyone.
What is the Covid vaccination and/or testing mandate?
President Biden implemented a 6-pronged strategy to combat the pandemic and attempt to mitigate the impacts on American lives and the economy. Two of those prongs, “vaccinating the unvaccinated” and “increasing testing” are addressed by the recent announcement made by President Biden on September 9th. There are already signed executive orders requiring vaccination of federal employees, federal contractors, and most health workers (those facilities receiving federal reimbursement from Medicare/Medicaid). These orders and the subsequent implementation of vaccination requirements for employees at companies like Southwest Airlines and United Airlines, as federal contractors, are the driver behind the recent headlines in the news. The following article focuses on private employers with any number of employees, not just those with more than one hundred, and do not fall into the above categories (federal, federal contractors, or healthcare workers).
In short, the mandate (temporary emergency standard) for employers with one hundred or more employees is still in development by the Department of Labor’s Occupational Safety and Health Administration (OSHA). This mandate is estimated to impact more than 80 million American workers employed by 230,000 companies. Again, this standard, or mandate, has not been finalized and a date for compliance has not been set; however, there is a sense of urgency to do so and employers will want to be prepared as resources will be scarce to be successful in implementing a program very soon.
When does the mandate go into effect?
In his September 9th announcement President Biden alluded to more guidance in the coming weeks. Nearly six weeks later and we do not have an update. We take this to mean very very soon and you might expect little time to prepare with a potential compliance date as early as Christmas. You can check back with OSHA at this site regularly for updates: https://www.osha.gov/coronavirus. We will also update our readers that are subscribed to our newsletters at https://biofunctionalhealth.com.
Who does the mandate apply to?
Currently in effect is a vaccination mandate without a testing option for the afore mentioned groups and the specific guidelines and resources here are offered to those who might find it useful in extrapolating requirements in anticipation of mandates on private employers.
- Federal employers: The Safer Federal Workforce has issued guidance here: https://www.saferfederalworkforce.gov/faq/vaccinations/.
- Deadline: federal employees must be fully vaccinated by November 8th to meet the November 22nd, 2021 deadline for compliance. This means two doses of the Pfizer or Moderna vaccine and one dose of Johnson and Johnson.
- New federal employees will have to be fully vaccinated prior to their start date after November 22nd, 2021.
- Does this apply to federal employees that work offsite or remotely? The short answer is, yes. The complete answer can be found at: https://www.saferfederalworkforce.gov/faq/vaccinations/
- Who is considered a federal employer? Employees as defined in 5 U.S.C. 2105 (including an employee paid from nonappropriated funds as referenced in 5 U.S.C. 2105(c)).
- Are there exemptions from the vaccination requirement/mandate for federal employees? “Federal employees must be fully vaccinated other than in limited circumstances where the law requires an exception. In particular, an agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice, or observance. Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19. Because such assessments will be fact- and context-dependent, agencies are encouraged to consult their offices of general counsel with questions related to assessing and implementing any such requested accommodations.” More info here: https://www.saferfederalworkforce.gov/faq/vaccinations/
- Federal contractors are any employees whose contract is paid by a federal funding source which includes, but not limited to Department of Defense (DoD), any GSA contract, or others funded by federal government entities. Employees are encouraged to contact their human resources representative to determine if they are considered a federal contractor and if this mandate will apply. In most cases, employees already know as companies have actively rolled out compliance plans. More information can be found here: https://www.saferfederalworkforce.gov/faq/contractors/
- Private employers with 100 or more employees. As afore mentioned, we are awaiting further guidance from OSHA regarding a mandate to vaccinate or test (potentially weekly) employees that work for companies with one hundred or more employees.
How does/can this impact employees with less than 100 employees?
As of right now we have no indication that a similar mandate is anticipated for private employers with 99 or fewer employees; however, as many were participants in federally funded programs like the Paycheck Protection Program (PPP) and other Small Business Administration (SBA) grants like the Economic Injury Disaster Loans (EIDL), it is not beyond the scope of imagination that a mandate is forthcoming. Again, the White House plan to mitigate the impact of the pandemic is to “vaccinate the unvaccinated.” There is no reason to believe that the other (nearly) half of the working population of seventy-five million Americans will not be included in future policy mandates. Let me be clear that this is fully speculation and not based on any inside information. Our recommendation for all employers is to be prepared to comply and a good safety program is a good idea even without a mandate.
What are some lessons learned by employers that have already implemented programs?
You don’t have to watch news on TV to have been informed of the misfires in large employer programs across the country. Each of these could have been avoided with proactive, sensitive, and frequent communication with employees. An important distinction here is that the vaccination mandate on federal employees and federal contractors did not allow for a testing program in lieu of vaccination. As a result, employees faced a decision to get vaccinated (if not already) or apply for an exemption waiver based on a medical reason (disability) or religious reasons. It appears that a lot of confusion came about as to what employers, and in turn their employees, did the mandate applied to and why. So for employers of over 100 employees out there I would be proactive now and let your employees know that there is a mandate for vaccination or testing coming and what your strategy is to comply and how that potentially impacts them. For U.S.-based employers with a remote workforce including those nearshore (Mexico and Canada) and offshore it is best to assume your headcount will be your total headcount regardless of location. Again, it would be better to have a plan in place than to be caught off guard due to bad assumptions. In the same respect, as the federal employee mandate specifically included remote workers as to assure their safety than it is also safe to assume that remote employees of employers with 100 or more employees will be required to be fully vaccinated or regular testing done according to OSHA guidelines.
Where can I find guidance?
This is the explicit reason we are writing this paper as there is little to no solid guidance yet, because OSHA has not released the final “temporary emergency standard” according to President Biden’s announcement on September 9th. This delay as led to a lot of speculation and anxiety for employers, and employees, as to what this could mean for them. U.S. employers have already experienced unprecedented voluntary attrition as a direct result of this pandemic that has decimated productivity and profitability in many industries. Employers are finding it increasingly more difficult to replace employees, so every employee counts more now than ever. We are focusing the remainder of this paper on the solution for all private employers seeking compliance with the anticipated mandate and those that simply want to provide safety and security to their employees. In regard to updates and additional information we have provided a Resources section at the end for your convenience.
What can employers do to prepare for President Biden’s vaccine and/or COVID testing mandate?
In an effort to make this easy to implement we are going to distill this down to its most simple step-by-step form in order of importance:
1. Count your employees.
This is may not be as simple as one may expect. If you have a combination of fulltime, part time, and 1099 contractors than you have some work to do. My advice is to take a current snapshot of how many in each of the above-mentioned categories are on your regular payroll regardless of their full time equivalent (FTE) status or work location. If your total headcount is 100 or more than start planning now. If it is not, you can choose to worry about this if a mandate is proposed that applies to your company later; however, our recommendation is to take advantage of being prepared and continue to step 2.
2. Inform your employees now
that it is possible that the vaccine or (weekly) testing mandate, that they inevitably heard about, either likely applies to them or doesn’t. Assure your employees that you are taking every consideration possible to assure their privacy and rights while you await final guidance from OSHA. Establish a centralized point of contact for questions and concerns and a way for employees to voice their concerns anonymously to you with an open forum. This is easy to achieve through a blog format on a private page on your website. Assure that this page is not indexed and only available to employees with appropriate security protocols. This is easier to do than you might think and must be moderated. Our recommendation is an FAQ page that will establish trust and free communication. We say moderated as you do not want employees responding to questions or answers to each other. This is not an open dialogue, but a way to answer employee questions openly.
3. Put all the pieces into place
Now you have some breathing room to plan and put all the pieces into place. Do not make the mistake of having all the answers and all the information before you start to communicate with your employees. They will want to know that you are on top of the information gathering and have their best interests at heart so that they can go back to work and being productive for you.
4. Gather information
That you will need to determine your costs of a program to comply. You will have to find a secure way for employees to communicate this to you and a secure way to store this information. As this information is technically private health related information (a vaccine is a medical procedure) it is safest to assume that the law protecting health information, HIPAA, applies. For more information on HIPAA standards visit: https://www.cdc.gov/phlp/publications/topic/hipaa.html#:~:text=The%20Health%20Insurance%20Portability%20and,the%20patient's%20consent%20or%20knowledge. You might hear that HIPAA does not apply under emergency rules and other assumptions, but there is no reason to believe that vaccination status and/or test results are not health private health information and therefore still protected by the 1996 law. Again, it is better to be safe than on the wrong side of a lawsuit. Most of the more common email providers have an encrypted email offering that is HIPAA compliant and can also help you with storage of the information on their HIPAA compliant servers. Information that you will need from your employees includes:
- Vaccination status and dates of vaccination. It would be useful to capture manufacturer of the vaccine at this point in the event this is useful in determining booster requirements later. If not vaccinated, then
- Vaccination intention. Whether an employee intends to apply for an exemption for medical or religious reasons should not be a consideration to the employer and becomes a lightning rod issue in retention. Be sensitive that there are a lot of strong opinions here and you are not likely going to change someone’s mind. If they do not intend to get vaccinated, then move on to the next step.
- Establish their willingness to participate in regular testing. We recommend preparing employees for weekly testing at the employers’ expense.
5. Get pricing and shop your options.
Now that you know how many employees that are not vaccinated and do not intend to receive a vaccination coupled with their locations, you can determine the best option for testing. If you have a 100% remote workforce and no concentration of employees within a 50-mile radius than this becomes an information gathering exercise in which you can reasonably expect these employees to help you gather local resources and pricing. This is not as easy as going to Walmart and buying an at-home test kit. In addition, there are reporting requirements that vary by state. Instruct your employees to find either a free testing center providing PCR antigen tests, a low-cost PCR antigen test, or CLIA certified or waived Point of Care Rapid Testing site. Each of these options have their pros and cons namely with the free and lowest costs options there are already long wait times, two hours on average during the week and longer on weekends, in most towns and cities across the nation. If an employer values their employees’ time, there is going to be some investment to assure compliance and convenience. The average cost of a PCR test, like those at Walgreens & CVS, is $150 and at $600 per month per employee that adds up quickly. Point of Care Rapid Testing is a lower cost convenient option whereas a licensed medical professional administers, interprets, and records results from tests similar to the home test kits that take as little as 10 minutes. If you have ten or more employees at a single location that require weekly testing this is your BEST OPTION for compliance, safety, and convenience.
6. It is time to commit to a strategy
Do not just gather information with intention to secure a vendor/partner when the mandate is finalized. Supplies of rapid test kits and availability of medical professionals qualified to conduct rapid testing will run out quickly. It is recommended that you secure your service provider in advance and partner with them in acquiring the required tests to get you through the next 3-6 months. It will take this long for supply to catch up with demand and you do not want to be the employer that has not planned in advance and find yourself both out of compliance with a federal mandate and out of favor with your employees. And of course the proposed $14,000 fine proposed in the mandate for noncompliant employers.
7. Communicate your plan with all employees
Not just those who are not vaccinated, and create an environment of trust and mutual respect. Take into consideration that booster shots are a likely necessity in the near future and many employees that are currently vaccinated may opt out of a booster shot and will appreciate knowing their options without having to endure the stigma of asking for information regarding your testing policies and program.
How to evaluate an onsite Point of Care Rapid Testing program partner
1. Do they employ licensed medical providers
Whose scope of practice allows them to administer the specific test they are using? This varies by state; however, in all states a registered nurse (RN) is authorized to administer a rapid COVID antigen and antibody test and report results. In most states, a licensed Pharmacist is permitted to administer tests as well. There are some states that allow other licensed medical professionals as well and if considering a program utilizing anyone other than a registered nurse (RN), it is advised that you check with your state’s department of public health and/or reporting agency first. Again, it is best to be safe in regard to compliance.
2. What kind of test are they going to use?
There a few considerations to keep in mind listed here:
- Deep or shallow nasal swab? There are tests that do not require being inserted all the way into the sinuses and can be administered MUCH more comfortably in the shallow entryway of the nostril. It might tickle the most sensitive employees, but is not uncomfortable to anyone. Yes, these are a little more expensive, but your employees will LOVE you for the consideration.
- Can they test for antigens (active infection) and antibodies (protection from infection)? To comply with the expected mandate employers will likely only be required to provide antigen testing for employees that are not vaccinated. However, if your employees’ safety, health, and productivity are your concern than you may consider offering an antibody test to determine an individual’s protection from infection either due to a previous COVID infection and recovery or vaccination. We already know that the efficacy of the vaccine wears off and data is being analyzed to determine how and when boosters are to be administered. I have not met anyone that wants to contract COVID, whether vaccinated or not, and both populations of your employees will LOVE you for providing them the benefit of determining their risk. The expensive part of testing is the medical person administering the test and not the tests themselves. For nominally more you can provide both antigen and antibody tests for your employees and in turn peace of mind.
- How accurate are the tests? Not all tests are created equal. Ask for the clinical validation and false/negative test results rates.
- Do they have enough tests and how can they assure supply? Medical suppliers work with established healthcare companies. There will be a lot of copycat offerings that popup to meet the demand and they will not have a reliable source. There will be knock-off test kits and the responsibility of due diligence to assure compliance is the employer’s. So go deeper than just price.
- How much do they cost? Healthcare companies can get bulk discounts and if they are anything like us, they will provide the tests at their costs and charge you only for the time it takes to administer the tests. We charge our customers $10/test and will do so as long as our suppliers honor these prices we have negotiated.
3. Is your company site CLIA waived to administer the tests outside of a controlled laboratory environment?
This is a critical step that the copycat companies mentioned above will either miss or fail. You can and should expect your program partner to file the waiver application for each of your sites as required by your state. More information on CLIA certifications can be found here: https://www.cms.gov/Regulations-and-Guidance/Legislation/CLIA/Downloads/HowObtainCertificateofWaiver.pdf
4. Determine reporting requirements of your state.
Positive test results are required to be reported in nearly every state and the mechanisms to report results and formats vary greatly. Employers can reasonably expect their onsite testing program partner knows how to do this and is doing so in a secure manner to assure privacy, mandate compliance, and again HIPAA compliance in protecting health information. Providing the tests will not assure compliance. If the results are not properly reported to state and federal agencies than again the employer is liable for the fines.
Where can I find help and more information?
If you are not already aware of BioFunctional Health Solutions (BHS), as a leader in onsite and digital occupational health and wellness, our hope is that you will consider our help in assuring your compliance with this proposed mandate. And for the many AWESOME employers out that truly care about their employees’ health solutions and safety you will partner with us in a testing program that builds trust, confidence, and loyalty. Book a quick (10-minute) consultation call with our experts (registered nurses) today at: https://calendly.com/robin-kruel/covid-testing-program.
- Centers for Disease Control and Prevention: Guidance for SARS-CoV-2 Point-of-Care and Rapid Testing - https://www.cdc.gov/coronavirus/2019-ncov/lab/point-of-care-testing.html
- President Biden’s Path Out of The Pandemic Plan - https://www.whitehouse.gov/covidplan/
- OSHA’s Emergency Temporary Standards (aka mandates): https://www.osha.gov/coronavirus
- BioFunctional Health Solutions Compliant Testing Programs: https://biofunctionalhealth.com/covid or schedule a consultation NOW: https://calendly.com/robin-kruel/covid-testing-program
Want more information about our services?
Please email or call us and one of our representatives will answer all of your questions. Or feel free to schedule an online demo above.