Emergency Employer COVID Vaccine Mandate

At a Glance

• The U.S. Labor Department will issue an Emergency Temporary Standard (ETS) regulation requiring companies with 100 or more employees to certify that their employees are either fully vaccinated or have proof of a weekly negative COVID-19 test.
• This ETS will also require employers to provide paid time off for employees to obtain the vaccine.
• This rule has not been published yet, but we expect it to go into effect quickly after publication, which is likely to occur in the coming weeks.
• On September 30, 2021, the U.S. Department of Health & Human Services (HHS) published guidance that addresses common workplace scenarios and answers questions about whether and how the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule applies.

Summary

On September 9, 2021, President Biden directed the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) to work on developing an Emergency Temporary Standard (ETS) which will require employers with 100 or more employees to ensure their employees are fully vaccinated. If an employee declines to be fully vaccinated, the employee must provide weekly proof of a negative COVID-19 test.

OSHA will also develop a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for employees to get vaccinated or to recover if they experience any post-vaccination side effects. This requirement will be implemented through the ETS.

The ETS has not yet been issued, so there is minimal information available regarding the requirements. However, it is important to note that collecting copies of the vaccine card may have HIPAA implications; generally, the card itself is not protected by HIPAA, and we anticipate that collection solely related to compliance with this requirement will remain unprotected by HIPAA. Even so, this information is highly sensitive and should be treated with a high level of care and confidentiality and HIPAA may be implicated if the card is collected for additional reasons, such as part of a wellness program to avoid a health plan premium surcharge.

Next Steps

On September 30, 2021, the HHS published guidance that addresses common workplace scenarios and answers questions about whether and how the HIPAA Privacy Rule applies.

Paylocity is actively monitoring and expects additional guidance from the agency to be released in the coming weeks. We are currently working on developing in-system solutions to help employers capture any needed information and meet any additional compliance requirements created by this ETS.

Thank you for choosing Paylocity as your Payroll Tax and HCM partner. This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.