The vaccine mandate has raised a lot of questions. Monday’s post addressed two important ones: What should you be doing now? And what constitutes 100 plus employees? But that only skimmed the surface.
Lawyers Danielle Capilla, VP of compliance, employee benefits for Alera Group, and Stacy Barrow, partner at Marathas Barrow Weatherhead and Lent LLP, in the webinar, Federal Vaccine Mandate Legal Challenges addressed many more questions.
So, we’ve compiled a Q&A to help you deal with more issues:
Q: What are employers’ proof of vaccine administrative requirements and what happens if the employee loses their vaccine card?
A: As part of the emergency temporary standard (ETS) employers must get proof of vaccination status from each employee. Generally, that would be a copy of their vaccination card or any other medical record documenting the vaccination.
“If, the employee loses it, they could potentially self-attest,” said Barrow. “They’d have to sign a statement saying they lost their card. And they must recount – to the best of their recollection – the date and where they got it, as well as the kind they got. If they can’t recount all that, they must be treated as unvaccinated. And, if they lie about their vaccination status, they could be subject to criminal penalties.”
Q: Doesn’t asking for vaccination status, and where and when they got it violate HIPAA?
A: “No it doesn’t,” said Capilla. “Keeping the records that people give you of their vaccine status, those records can be subject to privacy laws so we want to keep them the same way we would keep medical records. However, HIPAA only applies to healthcare providers and healthcare clearing houses – covered entities – and employers are not covered entities.
“Just like a business can ask you if you’re sick, an employer can ask for this information. And when it’s provided by the person themselves, it’s not protected by HIPAA, covered by HIPAA, and it doesn’t violate HIPAA.”
“They are confidential medical records,” said Barrow. “They’re kept confidential in accordance with the ADA, so they’re kept separate from employment records. “
Q: What tests can be used?
A: You can use any FDA-approved test to detect COVID-19. But it can’t be self-administered and self-read.
Q: Who’s required to pay for testing?
A: The ETS clearly states employers aren’t required to cover any of the cost associated with testing. There may be other laws, ordinances or regs that might mandate the employer pay for the testing, but it’s not required under the ETS. “Generally, the group health plan won’t pay for workplace testing,” said Barrow. “It only pays if the participant is symptomatic, or the testing is ordered by a healthcare provider.”
Q: What are the record keeping requirements?
A: You must maintain a roster of vaccinated employees and a record of their vaccination status, as well as if you’re accepting testing in lieu of vaccination. In addition, you must maintain a record of each test result provided by each employee. “Remember the records must be kept separately from personnel files. These records are only required to be preserved while the ETS is in effect,” reiterated Barrow.
Q: Are employers required to pay for face coverings?
A: Employers are not required to pay for face coverings unless there is some other state or local law that requires it.
Q: If the vaccine mandate is upheld and OSHA comes knocking asking to see our policy, how long do we have to produce it?
A: “You have 4 hours to provide the written policy, along with the aggregated number of fully vaccinated employees at the workplace,” said Barrow. “Any other documentation has to be provided by the end of the next day. Employees can also request this info, but you don’t have a four-hour turnaround time for them. You have until the end of the next business day following the request.”
Q: If the courts upholds the vaccine mandate will they change the effective dates?
A: “While we don’t entirely know, anything could happen,” said Capilla. “The ETS is a response to what OSHA claims to be an emergency that is putting Americans in grave danger. So, to say the court is going to uphold the mandate, but turn around and give everyone more time to comply because there was a delay, I think would fly in the face of the idea that it is a response to an immediate grave danger.
“I personally would not expect the courts or OSHA to give a whole lot of leniencies on [the deadlines], which is why we keep encouraging employers to prepare as though these mandates are going to go into effect.”
Q: What do we do with employees who didn’t get vaccinated, get COVID-19 and have to wait 90 days for the vaccine?
A: “It is my understanding that those folks get a 90-day window to wait,” said Capilla. “But after the 90 days, they need to get vaccinated or be subject to the testing.”
Q: Are employees who get an exemption on the vaccine subject to the testing?
A: “Yes,” said Barrow. “They’re subject to the testing and the mask requirement.”
Q: Are employees who’ve gotten the Novavax trial vaccine counted as being fully vaccinated under the ETS?
A: “I would not accept proof of a trial vaccination for a vaccine that was not ultimately approved by the FDA,” said Capilla.
Q: Can we do something to identify the unvaccinated employees, like colored lanyards to help with mask enforcement requirements?
A: “I would not recommend it,” said Capilla. “I think that could raise a host of discrimination issues in the workplace.”
Barrow agreed, adding, “If employees want to wear a sticker saying they’re vaccinated that’s fine. The unvaccinated must wear masks, but the company identifying them isn’t a good idea.”
Q: Why is OSHA not accepting natural immunity?
A: “It’s just a decision OSHA made,” said Capilla. “I don’t think there’s any room to argue with them on it. It’s just part of the rule. Natural immunity is not going to be an acceptable substitute for being vaccinated.”