With the Biden administration’s federal vaccine mandate tied up in court, employers are in wait-and-see mode on the rule’s future, leaving many employees wondering what happens next.
That’s why, experts say, it’s imperative that employers communicate with their workers about the mandate’s status and what’s happening with the litigation, as well as share information with employees on their plans once the courts make a final decision on Biden’s proposed vaccine rule.
“In the absence of information from their employer, employees will create their own narrative, which could be counter to an organization’s actual plan or cultural goals,” says Danielle Capilla, vice president of compliance, employee benefits, at Alera Group, a Deerfield, Illinois-based insurance and wealth management firm. “Being upfront about the plans that are forming—or opposition to the rule and desire to push back on it—will directly impact employee satisfaction or dissatisfaction with how COVID-19 and its risks are being handled.”
Under Biden’s mandate—the rules were officially released Nov. 4 by the Department of Labor’s Occupational Safety and Health Administration—employers with 100 or more employees were required to implement a COVID-19 vaccination requirement for their workers and to offer a weekly testing alternative for those who refuse or are unable to receive a vaccine by Jan. 4. But a ruling from the U.S. Court of Appeals for the Fifth Circuit placed a stay that cited “grave statutory and constitutional” issues with the mandate. As a result, OSHA says it is suspending enforcement of the Biden administration’s employer vaccine rule.
“You have to be aware that your employees are watching the news, seeing their Twitter feeds; they understand what’s going on for the most part,” says Melissa Gonzalez Boyce, an attorney and legal editor at XpertHR. “They understand that the ETS [emergency temporary standards] is out there and that they may be required to do certain things [if the rule is upheld]. Employers need to be upfront with their employees.”
So, what’s the best way for employers to communicate about the latest on federal mandate litigation?
Gonzalez Boyce recommends that company leaders communicate to their employees the type of policy that they would implement should the ETS be upheld—whether as a mandatory vaccination policy or if employees are going to be required to test weekly for COVID-19. If employers implement a policy that requires testing, the organization also needs to let employees know whether they’re going to be required to pay for that.
“Overall, my recommendation for employers would just be to get their ducks in a row,” she says. She adds that employers can use their regular forms of communication—emails, newsletters, mailers, meetings or any combination.
Generally keeping employees in the loop on the predicted course of action is best, adds Capilla. “Informing employees that employers will continue to gather data and create policies to implement the rule in the event they are required to do so—and that that work will only stop if a court of final decision strikes the standard down—is an appropriate course of action and will help employees understand what is happening behind the scenes,” she says.
Of course, some employers are moving ahead with vaccination requirements, regardless of what the future of the ETS is. Handfuls of employers have announced requirements in recent months, and a Willis Towers Watson survey finds that many employers have or plan to mandate vaccinations regardless.
For such employers, experts advise telling employees they’re going ahead with a mandate—and be honest about their reasoning. “It’s best not to take sides, not make it a political thing,” Gonzalez Boyce says. “Just state the fact that this is a furthering of their efforts to protect their own employees, protect their families at home, and to make customers, clients and visitors welcome into the workplace.”
Employers, meanwhile, are advised to be prepared to comply with the law, experts say.
“If it is upheld, you don’t want to be behind the eight ball, you want to make sure you have procedures in place,” Gonzalez Boyce says. “The ETS has so many compliance obligations that are so intercut, so arduous on the employer, that it’s not something an employer will be able to pick up.” She adds that her firm is encouraging its clients to start surveying their employees to determine their vaccination status.
Capilla agrees. “Employers and employees need to be prepared for the final outcome of the OHSA ETS to be released by a court of final opinion close to, if not shortly after, critical implementation deadlines,” she says. “If the courts uphold the ETS, it is anticipated the government will not provide leniency on employer implementation, in part because the ETS is an emergency standard being issued due to great risk of harm—essentially, providing additional runway to get up and running would only further the grave danger OHSA believes exists.”