Behavioral Health

What should employers know about federal COVID-19 vaccine and testing mandates, after the January 13 Supreme Court ruling? Legal expert Ellen McCann walks HR listeners through the current status of the three federal mandates and what employers should do now to ensure a safe workplace.

Background: The three federal mandates. They are (1) the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) or private employer mandate, (2) the Centers for Medicare & Medicaid Services (CMS) or health care worker mandate, and (3) the federal contractor mandate. All three have been tied up in litigation. On January 13, the Supreme Court weighed in on the private employer and health care worker mandates. [1:19]

What does the Supreme Court ruling mean for the private employer mandate? For now the ETS is paused, which means OSHA cannot enforce it. It is not actually struck down, although the Supreme Court’s reasoning suggests that it may eventually be declared unconstitutional. [3:27]

What does this mean for employers? Employers who are only subject to the ETS have a little bit of breathing room as OSHA cannot enforce this mandate for now. The Supreme Court ruling does not prevent employers from instituting their own vaccine or test requirements. Employers should work with their legal counsel to see if they are subject to any state or local laws requiring or preventing implementation of their own program to keep employees safe at work. [5:25]

What happened with the health care worker mandate? The Supreme Court lifted the stay on this mandate, meaning most health care workers are now required to get vaccinated before coming to their workplace. The deadlines have been moved for workers in states where the healthcare mandate had previously been stayed. [8:44]

What can employers do to handle the complexity of this new HR burden? The pandemic in general and the vaccine mandate have created a record level of complexity for HR teams. Technology solutions like Unum Vaccine VerifierTM can help. Vaccine Verifier is designed to address the most complex aspects of vaccine-or-test mandates in that it not only provides a way to track vaccine status and testing compliance, it helps guide employers through the sensitive process of managing exemption requests. [10:31]

Finally, where does the federal contractor mandate stand? This mandate was stayed earlier in lower courts, so employers will need to wait and see whether it ever takes effect. But again, the stay doesn’t stop employers from adopting their own policies to protect their employees at work. Unum Vaccine Verifier and other technology solutions are available to help organize and enforce whatever policies employers have, while keeping all documentation in one secure place. [13:47]

Where should employers focus in the coming weeks, now that the Supreme Court has ruled? Sit down with your counsel and senior leaders and decide how you want to show up for your employees. What’s your corporate philosophy and culture about keeping your workplace safe and helping employees feel comfortable coming back to the work site, if that’s your goal. Also, as we saw on January 13, rules can change in a minute, so use your counsel to help you stay up to date and make sure they are on board with any policy you adopt. [14:55]

Featured speaker

Ellen McCann
Assistant Vice President, Unum Group Solutions

Ellen McCann is an acclaimed national speaker on leave management issues including FMLA and ADA. She is also a certified trainer for SHRM and CE credit. In her current role, Ellen serves as a leading expert in applying benefits and benefits technology to power modern solutions to more effective employee leave programs, stronger regulatory compliance and enhanced digital HR transformation.