Vaccinate or test mandate: will staffing firms have to abide?

 It was announced on September 9th that all U.S. private-sector firms with 100 or more employees will have to ensure staff are fully vaccinated or tested regularly.  62% of Americans were fully vaccinated as of that date, falling below where the Biden Administration had hoped we would be.  

$14K per violation of vaccine mandate

OSHA will enforce the vaccine mandate with a fine of $14,000 per violation against private companies that do not comply, through a forthcoming rule.  

Fines for those who don’t wear a mask on an airplane, train or bus will also increase.  “First-time offenders now face a fine between $500 and $1,000, while fines for a second offense will range between $1,000 and $3,000, according to a TSA release.” 

Entertainment venues and school employees are also being asked to adopt vaccine mandates.

Will the ETS make it into law?  Experts are divided 50/50

An ETS (Emergency Temporary Standard) is what OSHA plans to publish to enact the new requirements which has only been used 10 times in the last 50 years and almost 50% of those rules were invalidated by courts. The last ETS (Emergency Temporary Standard) that OSHA had used prior to last June where they formulated healthcare workplace rules to help stop the spread of coronavirus, was 38 years ago.  And it took five months for OSHA to create the June rule with only a portion of it going into effect.  

Many see the courts as determining the proper application of the vaccine mandate.  Experts are completely divided if this ETS will in fact make it into law.  

There are many who do not believe in mandating vaccines.  Dr. Kahn, from the Kahn Center for Cardiac Longevity, shared 29 scientific studies from the Brownstone Institute regarding natural immunity that was published as an article for employers, health officials and politicians.  Dr. Kahn said “these studies demonstrate what was and is already known: natural immunity for a SARS-type virus is robust, long-lasting and broadly effective even in the case of mutations, generally more so than vaccines.”  

Joel Kahn, MD, Integrative Cardiologist, also notes that “the realization that natural immunity - which pertains now to perhaps half of the US population and billions around the world - is effective in providing protection and should have a dramatic effect on vaccine mandates.”  Studies like these can give the staffing industry and employers in general, hope that natural immunity may be considered over mandates.  

OSHA has limited safety and compliance staff 

OSHA only has about 800 safety and compliance inspectors for more than 100,000 private sector companies that will be affected by the new rule. Employers have not been held accountable for unsafe pandemic conditions as reported by Reuters when employees complained when inspectors did not or took months to review reported facilities.  Sixty six percent of employers did not pay fines and 50% appealed citations that were issued by OSHA.  

The time consuming process for OSHA to create the ETS vaccination standard requires working through many questions brought forth by the Chamber of Commerce, various industries and business groups. Neil Bradley, the Executive Vice President and Chief Policy Officer of the US Chamber of Commerce posed many questions to the Secretary of Labor: 

Some of the questions related to the vaccine mandate coverage from businesses around the country (many of them directly related to the staffing industry) include: 

• How will the 100 employees be counted? 
• Will it be 100 employees for the entire business or 100 employees per individual location? 
• Will part-time employees be included in the 100-employee threshold? 
• Do employees who are working from home count towards the

100-employee minimum? 

• How will temporary or seasonal workers be addressed in the employee count? 
• Will independent contractors count towards the 100-employee threshold? 
• How will the ETS address Professional Employer Organizations (PEO's) and staffing companies? 
• Will the ETS apply to workers who are full-time work from home / never come into an office or workplace? 
• Will the ETS cover individual independent contractors that are engaged by a company with more than 100 employees? 

Bradley also shared questions related to implementation, vaccination, testing, non-compliance, providing leave and enforcement.  Specific to the staffing industry, questions included:  “Although the ETS will go into effect immediately, will it contain a grace period for employers to develop their programs and for employees to become vaccinated? Will employer obligations end at creating a vaccine policy in accordance with the ETS or will employer obligations extend to verifying that each employee complies?  

Staffing industry requirements for a vaccinate or test mandate are enormous

The details this mandate would require of a staffing company are enormous when you consider everything surrounding the requirement.  It reminds me of the complexity surrounding drug testing and the effect that continues to have on staffing companies.  

With drug testing the Courts generally ruled that pre-employment drug screens for illegal drugs do not constitute medical examinations under the ADA and the Equal Employment Opportunity Commission reminded us screens should be administered after a conditional offer of employment has been made. 

Companies perform drug testing because risk is mitigated.  Accidents are prevented, absenteeism and litigation is reduced, employees are protected from injury and productivity improves.  But, drug testing is expensive and slows down the hiring process and can negatively affect the job candidate’s experience while applying and onboarding for a role.  The amount of employer related hiring laws and paperwork required over the last few years has been complex, to say the least.  The Affordable Care Act alone took years to establish, understand and administer and now the employee mandate is gone but not the employer mandate.  

The amount of new hire paperwork a staffing agency has to administer is already cumbersome. Some clients also like their particular policies and procedures to be shared in addition to the staffing agencies.  For those with electronic onboarding, the continual changes that have to be made to update the information is time consuming and expensive.  Adding a vaccine or testing mandate is a tremendous burden for both staffing agencies and employers in any industry.  

Medical or in-office testing, employer or employee cost and limited job candidates already, pre-pandemic

If staffing firms will be required to go down the Covid test mandate hole, employers need to know the type of testing acceptable.  For starters, they need to know if it must be done by a medical professional and what happens if the employer cannot get enough tests to conduct weekly if they are allowed to administer in-office.  Not to mention of course, who pays for the cost of testing when estimates show a single PCR test is between $80-140 after processing. 

Should employers have to test, many are asking if they will have the option to pass on the cost of the testing to employees when they choose to remain unvaccinated and do not have a medical or religious reason precluding them from being vaccinated. If they can pass this testing on to employees, when it is their choice to test rather than vaccinate, many will want to know if their agency can deduct the cost of weekly testing from employee wages.  

The reality is neither employees or staffing firms can afford to pay for weekly testing and work time to do so.  It is hard enough to attract job candidates and get them to apply under current conditions.  Adding further testing - even if it’s employer paid, will further detract from applicants coming in the door.  

Staffing agency compliance requirements being considered

Issues to be aware of surrounding compliance for staffing agency owners include action steps to take if an employee refuses to be vaccinated without an exemption.  Will the employer be immune if required to terminate an employee for not providing a proof of vaccination or negative test.  Is there a limit to the number of weeks an employee can submit to testing?  

Also, regarding unemployment claims and benefits, many staffing firms want to know if a termination has to take place for an employee refusing a vaccine - if it will count against an employer’s UI experience rating. 

There are countless unanswered questions and at this point many staffing firms are waiting to see what OSHA publishes as the ETS standard for the vaccinate or test mandate.  However, many are also starting to think about what to do and how to prepare if this mandate is approved and will be enforced.   

According to Joanna Monroe, managing partner of Staffing GC and general counsel for the staffing industry and board director with 20+ years of experience in staffing and employment law shared that even though the mandate is likely to face legal challenges, staffing agencies should be preparing for implementation.

Monroe shared 3 things staffing agencies can do now to prepare for the vaccine or test mandate:

1. Adopt a policy

• Will you mandate the vaccine or allow unvaccinated employees to be tested weekly?
• Although it is not clear, it is likely that the final rule will require you to pay for the time spent getting the vaccine.
• If you allow for weekly testing, determine the logistics and plan to pay for employee's time and the cost of the test.

2. Establish a plan for determining employee's vaccination status

• It is generally lawful for employers to ask employees about vaccination status but maintain confidentiality.
• Outline your process for asking employees about their vaccination status and potentially obtaining proof if the rule requires it.
• Establish a tracking mechanism.
• For new employees, establish vaccination status and proof as a condition of employment.

3. Prepare to respond to accommodation requests 

• Ensure your vaccine policy includes reasonable accommodation for disability or religious reasons.
• If you allow for weekly testing in lieu of vaccinations, you will also need to be prepared to accommodate for disability issues.

COATS Staffing Software offers ways to report and track vaccination status, testing and accommodations for the vaccinate or test mandate.  Please contact us for details on how to use COATS to help you through this process.

Please note the information provided in this article does not, and is not intended to, constitute legal advice; instead, all content is for general informational purposes and we always suggest you contact your attorney for specific legal advice.