As part of Employer Advantage’s comprehensive suite of HR management and outsourcing services (HR, Payroll, Health & Benefits, Safety), we are assisting our clients in determining their best path during, and after, the Coronavirus pandemic. Please contact us if you would like assistance with any of your Employee Administration and Compliance responsibilities: | 877.476.9520


“WHAT DO WE DO NOW?” – A common question among employers as the Supreme Court blocked the Occupational Safety and Health Administration (OSHA) from enforcing the vaccine mandate-or-test Emergency Temporary Standard (ETS) for non-healthcare provider businesses. OSHA responded on January 25, 2022, by shelving the emergency rule altogether.



There Still Could Be an OSHA Vaccination Mandate Rule in the Future

OSHA announced they will push forward a proposed rule under the rulemaking provisions of the Occupational Safety and Health Act and not as a temporary emergency measure. This means that OSHA will pursue a permanent rule requiring “vaccination or testing” through the normal rulemaking notice-and-comment process. It is likely that the agency may also attempt to tailor the rule to a narrower group of employers by targeting specific industries. Long term, OSHA will likely use the framework of the ETS as the basis for a broader infectious disease standard in the workplace, going well beyond just COVID-19


Employers Don’t Have Wait to Act

OSHA has been gearing up for enforcement of workplace safety obligations. Last year, the agency hired and trained hundreds of additional investigators poised to ensure the nation’s employers are complying with COVID-19 protocols as well as general workplace safety.


Here are some answers to questions employers have about their right to implement Coronavirus safety mandates.


Q: Can we still mandate the vaccine for our workforce? A: In most states.

In most states and locations, it is still permissible to impose your own vaccine mandate. The Supreme Court said OSHA can’t require employers to implement a vaccine policy – but the Court did not say businesses may not implement a policy on their own if an employer believes it is right for their workplace.

Check to determine if your state law permits employer vaccine mandates or requires a broader set of exemptions than provided under federal law.


Q: Can we require regular COVID-19 testing for unvaccinated workers? A: Yes.

Like the mandates, the Supreme Court ruling in no way prevents employers from implementing a policy that requires regular COVID-19 testing of all non-vaccinated personnel if you offer a vaccination alternative.


Q: Are we allowed to ask the vaccination status of our employees? A: Yes.

One of the most common myths is that the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA) prevents employers from asking about vaccination status. This is not true. In December 2020 the US Equal Employment Opportunity Commission (EEOC) stated that businesses may lawfully ask employees their vaccination status without violating federal anti-discrimination laws – provided the question is limited to a yes-or-no response.


Q: What should we do with workers’ vaccine cards we collected? A: Keep them.

We recommend holding onto employee proof of vaccination cards in expectance of future permanent vaccine rules. Keep them safely stored and guarded from theft and cybercrime. Do not reveal them to personnel who aren’t on a need-to-know basis.

We do not believe that OSHA will end up requiring employers to hold COVID-19 vaccine cards for the full 30 years, like the requirement for other similar employee records during non-pandemic times.


Q: Can we implement heightened safety obligations for non-vaccinated employees? A: Yes.

While OSHA may not currently be enforcing this, employers have the right to require staff to show proof of vaccination or comply with additional safety restrictions as deemed necessary to maintain a safe working environment.


The time is now to get your house in order. As discussed in our blog – “COVID-19 Wrongful Death Lawsuits and Personal Injury Claims May Be on the Horizon for Many Employers” – workplace safety and COVID-19 protocols are one in the same, and must become a culture, not just an event.


Click here to see our other helpful “Blog for All Employers” 


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A New Path to HR Bliss – Trusted for more than 30 years, Employer Advantage frees you from the administrative and compliance burdens of having employees so you can focus on your business success. Versatile enough for companies of all sizes, our unique service combines comprehensive management of your employee administration and compliance with the latest software solutions, tailored to meet your individual needs and company culture. Our full-service management of Human Resourcespayrollhealth and benefits, workplace safety, and more enhance your profitability while reducing the costs and risks associated with employment law compliance. We provide your employees with top-notch assistance and benefits that help you increase productivity, save time and money, and attract and retain a talented workforce. And for small and mid-sized businesses, we bring you economy of scale with access to Fortune-500-level benefits, specialty assistance, and savings that would not be possible to attain on your own. Headquartered in the Midwest and serving more than 500 companies and 10,000 worksite employees throughout the country, Employer Advantage is an IRS-Certified Professional Employer Organization (PEO) (CPEO). Experienced, certified, and trusted.