Romer: What to know about the federal employer vaccine and testing mandate |

Romer: What to know about the federal employer vaccine and testing mandate

Last week we discussed the need for civility and kindness. It’s important to keep that in mind as we explore the federal vaccine mandate and its application.

Let’s start with this: I don’t particularly like government mandates. I’m a free-market guy. I support a business’s right to require mandates for their employees, and I will equally support a business’s decision not to require mandates.

I think things generally work better when the government steps back and lets the market dictate, while always safeguarding protected classes (race, gender, religion, etc.). I think we’re better off when businesses decide what works best for them and I will respect the choices they make. I think customers (and employees) will vote with their wallets, which to me is better than the government dictating.

Now that that’s out of the way, let’s explore the mandate. On Nov. 5, the Biden administration released the details of its Emergency Temporary Standard to require employers with 100 or more employees to be vaccinated for COVID-19 by Jan. 4 or test for COVID-19 at least weekly. Several states have already filed lawsuits against the mandate and a federal appeals panel issued a temporary stay.

OSHA has made clear that the Emergency Temporary Standard preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.

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Don’t leap to political positions here; the point isn’t if we like or dislike the mandate and requirement passed down. It’s about preparation despite the fact the mandate enforcement is stayed.

Employers must prepare for the Emergency Temporary Standard to take effect as they face a Dec. 5 deadline to allow employees paid time off to get vaccinated and require unvaccinated workers to wear masks.

So, what does the Emergency Temporary Standard say? Employers with 100 or more employees must:

  • Provide paid time off for employees to get vaccinated by Dec. 5.
  • Require unvaccinated workers to wear masks by Dec. 5.
  • Ensure that their employees are fully vaccinated by Jan. 4 or be subject to weekly testing. Employees who are not fully vaccinated after Jan. 4 must produce a verified negative test on at least a weekly basis. Employers may be required to pay for testing “because of other laws or collective bargaining agreements.” As of now, the Department of Labor’s Occupational Safety and Health Administration has yet to clarify an employer’s financial obligations to provide testing.

Additionally, health care workers who work at facilities that participate in Medicare or Medicaid must also be fully vaccinated or qualify for an exemption by Jan. 4. There is no weekly testing option for health care workers.

We will keep you updated on the outcome of the stay but want to emphasize that the Emergency Temporary Standard has not been repealed. The Emergency Temporary Standard has only been suspended. It’s important to note that the deadlines issued by OSHA could remain in effect if courts rule in favor of OSHA.

Here’s a list of some FAQs, resources, and tools to help employers comply:

  • OSHA has a dedicated website with information about the Emergency Temporary Standard. It includes policy templates, workers’ rights fact sheets, and an extensive FAQ.
  • The U.S. Chamber of Commerce answers some of the employers’ biggest questions, such as how the 100 employees are counted, whether seasonal employees count, and what to do if an employer is in a state that is challenging the Emergency Temporary Standard.
  • SHRM has a blog about the vendors that are working on tracking tools to help employers.
  • The Colorado Department of Public Health & Environment has a website dedicated to vaccine laws and regulations.

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