By Chris Wibe |  Human Resources Generalist

As December fast approaches employers, both private and public, are faced with the task of implementing some version of a federally mandated mask mandate. The type of mandate being required of an employer will differ depending on if they are a private employer, a healthcare provider, or a federal contractor. While some mandates are being challenged in court currently, it is still important for employers to familiarize themselves with the mandates that could impact them directly and begin to prepare should the mandates ultimately take effect. Here is a brief synopsis of the three mandates.

OSHA ETS

The mandate affecting most employers is being implemented by OSHA under its Emergency Temporary Standards rules. This rule sets out that private employers with 100 or more employees must comply with the following regulations by December 5^th, 2021:

• Implement a vaccination policy that also covers testing and face masks
• Require all staff to be vaccinated or submit to weekly testing
• Provide paid time off to employees to get vaccinated
• Provide reasonable time of for staff who suffer side effects from being vaccinated
• Maintain records of the vaccination status of all staff
• Employees must have their final vaccination dose completed by January 4^th, 2022.
• Employers must have a plan in place to consider reasonable accommodations for persons requesting one for medical concerns or are objecting based on a closely held religious belief.

While there currently are legal challenge being brought against this rule, it is the stance of OSHA that their guidelines supersede any local/state rules.

CMS ETS

The CMS requirements affect Medicare/Medicaid certified providers. This includes entities such as hospitals, surgical centers, hospices and more. CMS provided the following guidelines that will begin effective December 5^th, 2021:

• Covered providers and suppliers must implement mandatory vaccination policies that include a process by which staff may request an exemption from the vaccination requirement for medical or religious reasons in accordance with applicable federal law.
• There is no “test out” option.
• Only religious or medical exemptions are permitted, and any such requests must be submitted by Dec. 5. Employers must have a plan in place documenting how they will handle any accommodations granted to their staff.
• Covered staff (except for those who have pending requests for, or who have been granted, medical, or religious exemptions to the vaccination requirements, or those for whom COVID-19 vaccination must be temporarily delayed, as recommended by the CDC, due to clinical precautions and considerations) must receive their first dose of a multi-dose COVID-19 vaccine series by Dec. 5 and all covered staff must be fully vaccinated by Jan. 4, 2022, or have received an approved religious or medical exemption. Employees who received their final vaccine dose but are not yet 14 days post-vaccination by Jan. 4, 2022, will be considered compliant.
• Covered providers and suppliers must track and securely document the vaccination status of each staff member, including those for whom there was a temporary delay in vaccination.
• Covered providers and suppliers must implement a process for ensuring additional precautions intended to prevent the transmission and spread of COVID-19 for all staff who are not fully vaccinated for COVID-19.
• Exemptions can be made for staff who are completely remote.

The challenge with the CMS guidelines involves the exemption process. While they indicate that employers must consider reasonable accommodation and provide them when appropriate, they do not provide any guidance as to what a reasonable accommodation could entail. We encourage employers dealing with accommodations to consult with an employment attorney to discuss what options might be best in these situations.

Federal Contractors

The final mandate comes under an executive order issued by the White House.  This order covers federal contractors and subcontractors. Under this order federal contractors must do the following:

• Ensure all applicable staff have received their final vaccine dose by January 4^th, 2022.
• Create a system to track compliance with the vaccine mandate.
• This mandate applies to all staff. This includes remote staff who may never come to the office.
• There is no test out option.
• Contractors must follow all COVID protocols of the agency for which they work.
• Employers must consider request for reasonable accommodation due to medical necessity or deeply held religious belief.

As this order directly affects federal contractors, there are no current legal challenges to this rule. State laws barring vaccine mandates are not seen a currently applicable to federal employees/contractors.

The information and guidance on each of the mandates is constantly in flux. We recommend that employers consult with a HR professional or an employment attorney before taking any adverse action against an employee regarding these mandates.

Chris serves as our HR Generalist and brings over 10 years of experience to his position at Lever1. Through his role, Chris works closely with our clients daily on consultations, handbook reviews, job descriptions, and training.