ALEXANDRIA, Va.—Last Thursday, the Biden Administration announced that the Occupational Safety and Health Administration (OSHA) will soon issue a rule that will require all employers with 100 or more employees to either ensure their workers are vaccinated or require unvaccinated employees to produce a weekly negative test result before coming to work. It’s estimated that 80 million workers, or two-thirds of the country’s workforce, will be impacted by the rule, according to law firm Fisher-Phillips.

In light of the announcement, many employers are left unsure how to navigate these unchartered waters. Fisher-Phillips lays out a five-step action plan for employers to implement immediately.

1. Adopt procedures for determining employees’ vaccination status: Employers should be ready to implement an organized, confidential process to determine vaccination status, and companies are OK to ask employees about COVID-19 vaccination status as indicated by the Equal Employment Opportunity Commission.
2. Determine if you will mandate the vaccine or allow unvaccinated employees to be tested weekly: Some employers may choose to not allow weekly testing, as it could be onerous to collect and keep track of test results.
3. Develop a plan for handling accommodation requests: Employers who plan to have a mandated vaccination policy must also have a detailed, crystal clear accommodation policy for any employee exempted from the vaccine for religious or disability reasons. Companies who implement weekly testing will also need an accommodation policy.
4. Have a plan for tracking test results: Employers who do decide to allow weekly testing will not only need to have a set plan to track the test results, but they also need to find out if they will have to cover the cost to test. Non-exempt workers also must get paid for time spent getting tested, according to FLSA.
5. Prepare for OSHA complaints and inspections: Any existing OSHA and CDC compliances in place at a company relating to the mitigation and prevention of COVID-19 will need to stay in place, as a mandated vaccine and/or weekly testing policy does not negate these compliances. OSHA could ask for an employer’s COVID-19 response plan and training records if it receives a complaint or inspects a workplace. Employers should have a COVID-19 policy and communicate it to employees, and those in charge should be trained on how to handle an OSHA visit.

Fisher-Phillips is holding an emergency national webinar on the impending OSHA rule on Tuesday, September 14, at 2 p.m. ET to discuss these issues in depth.

Coronavirus Resources

NACS has compiled resources to help the convenience retail community navigate the COVID-19 crisis. For news updates and guidance, visit our coronavirus resources page.