Now that the Supreme Court blocked the federal vaccine mandate for businesses with 100 plus employees, it’s almost a forgone conclusion that it’s dead in the water. But that doesn’t mean you can’t implement your own vaccination or testing requirements. Far from it. In fact, there’s a lot of information Benefits pros can take away from this ruling!
If you’re thinking wait, the Supreme Court said they won’t allow it to go into effect until all litigation is done, and there’s still active litigation. You’re right. But since the case goes back to the 6th Circuit Court, which is overwhelmingly conservative, they’re probably going to take their lead from the Supreme Court and determine that OSHA’s emergency temporary standard (ETS) is unconstitutional, according to industry expert Dr. Jim Castagnera Esq., Chief Consultant of Holland Media Service and regular webinar presenter on HRMorning.
“I think it’s absolutely dead,” said Dr. Castagnera. “So, if you are not covered by any other mandate at your organization, it’s up to you to decide if you want to mandate or incentivize vaccinations.”
It’s possible the Biden administration might have OSHA come up with narrower requirement that the Supreme Court wouldn’t have a problem with, but it would be a struggle.
“The EEOC and other federal agencies have made it clear that you can mandate vaccinations,” said Dr. Castagnera. “This does not take that mandate out of your hands. You can still do that unless you happened to be in Florida where they passed a law that made it very hard for an employer to mandate vaccinations. But in most jurisdictions, it’s now on you.”
Do you need a vaccine mandate?
But as a Benefits pro you also must think about do you want to implement a vaccine mandate considering the Great Resignation.
“It’s like any other health or safety decision,” said Dr. Castagnera. “On the one hand, you want your employees to be safe. On the other hand, you must be able to run a profitable business. So, you try to find that sweet spot where you’re being reasonably safe, you’re meeting the General Duty requirements under OSHA and, at the same time, you’re able to operate your business.”
OSHA is not out of the game. There’s a lot of guidance from OSHA as to what makes a safe workplace, and it’s often industry specific. “Most of it falls under the General Duty Clause,” notes Dr. Castagnera. “So, you want to look at the guidance, decide what are the things you should be doing, and, if you’re doing those things, do you really need to have a vaccination mandate in place?”
There are surveys out there that say one-third of your employees will quit if you implement a vaccine mandate. And still other surveys say one-third of people will jump ship if you don’t implement a mandate because they won’t feel safe.
“If they haven’t done it already, Benefits and HR pros need to get the pulse of their workforce,” said Dr. Castagnera. “There’s no one-size fits all solution. Every workplace is different. And I think that’s where employers are left right now.”
Shift from vaccination to testing
Rather, than come up with a narrower focus, Dr. Castagnera thinks the Biden administration is shifting their emphasis from mandatory vaccination to testing. “It seems clear to me that what the Biden administration has said in the wake of losing this case is, OK, we can’t mandate vaccinations for the bulk of employers like we thought we could so we’re going to have to put pressure and resources into testing. And I think Benefits people have to begin to flex in terms of how the testing requirements are going to play out.”
Now that the government is providing free federal at-home COVID-19 test kits (covidtests.gov) availability should improve so mass testing should be a lot easier.
Reimburse for tests
Another factor that Benefits pros need to concern themselves about is on Jan. 15, 2022, private insurance companies were required to reimburse their plan members for rapid antigen COVID-19 tests. So, if you have a self-funded health insurance plan at your company or if you’ve got a group plan and you deal with a carrier, it’s an issue you must deal with.
“It’s almost like reverting back to the old days,” said Dr. Castagnera. “In the sense that employees who buy [COVID-19] testing kits need to keep the receipts and test kit boxes as proof of their purchase because they’re going to have to put in a claim. And it’s going to take some time for insurance carriers to get up to speed on how they are going to handle all these claims electronically.”
In addition, carriers under this rule are entitled to make deals with drug stores and some other retailers. So, eventually, it’ll be just like picking up any other prescription. People will be able to walk into CVS, pick up test kits and their insurance company will be billed automatically.
But this is all going to take time to figure out and implement. So, the bottom line: Patience is a virtue.
Healthcare worker mandate
The Supreme Court allowed the healthcare worker vaccine mandate to be enforced in all 50 states. It applies to healthcare providers that bill Medicare and Medicaid. They must have at least one dose of a COVID-19 vaccine by Feb. 14 (happy Valentine’s Day) and must be fully vaccinated by March 15.
There’s also the government contractor leg of the vaccine mandate. That’s still in litigation, and it’s not going to be argued in front of the 11th Circuit Court until Feb. 22.
If it ends up in front of the Supreme Court, will it go the way of the healthcare mandate or the 100 plus employer mandate?
“I don’t know,” said Dr. Castagnera. “We’re going to have to watch that one, and it’s probably not going to be resolve until the end of march. So, if you happen to be a federal contractor, you really have to watch this closely because it could really be a game changer for you!”
This next point isn’t directly related to the Supreme Court decision, but it’s something Dr. Castagnera feels Benefit pros need to be aware of – long COVID.
If you aren’t already familiar with long COVID, the Centers for Disease Control and Prevention (CDC) defines it as “a wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19. Even people who did not have COVID-19 symptoms in the days or weeks after they were infected can have post-COVID conditions. These conditions can present as different types and combinations of health problems for different lengths of time.”
On July 26, 2021, the U.S. Department of Health Human Services (HHS) and the Department of Justice (DOJ) offered guidance on long COVID as a disability under the Americans with Disabilities Act (ADA).
“That’s going to affect more than the ADA and accommodations of those disabilities,” said Dr. Castagnera. “I think that pretty much establishes that it’s a serious medical condition for purposes of FMLA leave. And if you can show you contracted it in the workplace, it’s a pretty good argument for being eligible for workers’ compensation benefits. And whether it was contracted in the workplace or not, it probably impacts short-term and long-term disability eligibility requirements.”
There’s been a lot of hand wringing by Benefits pros about how they should deal with COVID-19. Do you treat it like the flu, and it’s not covered under benefits, or is it more like a disease that should be covered?
“I think what the Department of Justice has done in coming out with the long COVID pronouncement is to say it can be one or the other,” said Dr. Castagnera. “You can have COVID-19 which is flu like and goes away and it’s not cover by benefits of any kind. Or it could be long COVID that can affect your mind, heart and lungs, and then it’s going to be a disability. And that’s something Benefits people are going to have to deal with.”
Considering all of this, Dr. Castagnera advises Benefits pros to:
- Look at the COVID-19 policies they have in place and make sure they’re up to date and reflect the reality on the ground
- Find out what COVID-19 policies are at the state and local level, and what they require of them, and
- Recognize that testing is going to be crucial. If the federal government is putting this much emphasis on testing, then OSHA will be able to exercise its authority over testing and contract tracing of COVID-19 in the workplace.
“To me, the most important part of your policy review is determining how testing fits into your overall COVID-19 plan,” added Dr. Castagnera. “Because from the federal government on down, we are going to see a real shift toward emphasizing testing. So, if you don’t have a robust testing and contact tracing plan in place as part of your overall COVID-19 strategy, that’s probably the most important thing to focus on.”