FAQ about Biden's Vaccination Requirements
HR Service, Inc. received excellent questions during our training that covered the Biden Vaccination Requirements, No Surprises Act, Transparency, and other essential updates. We wanted to share this updated Q&A with you to keep you informed of the latest critical updates.
Q: If offering incentives to encourage employees to get vaccinated, do employees who are already vaccinated get the same incentive?
A: It is not required, but is recommended out of a sense of fairness and equity.
Q: Who is the quote “Employers can require that their employees are vaccinated, based on the ‘requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.’” from?
A: The Equal Employment Opportunity Commission.
Q: Can employers require that employees pay for weekly testing?
A: The Equal Employment Opportunity Commission has not yet specifically addressed who would be responsible for the cost of COVID-19 tests. The Department of Health and Human Services has this resource that lists free testing sites by state. If free testing is not feasible, employers will need to review the applicable federal, state and local employment laws to determine if they must pay for testing. In some states, employers are expressly prohibited from requiring employees to pay for employment-related expenses – which could include COVID-testing as a condition of employment. Also, note that health insurance generally does not cover the cost of testing if the person being tested is not exhibiting symptoms of COVID-19 or has had known or suspected exposure.
Q: If an employee does not get vaccinated and it is mandated, are they considered terminated, or would it be considered a voluntary resignation? Are they eligible for UI benefits or not?
A: Eligibility for unemployment is a decision made by the state’s unemployment department, so it varies. There are some states that have said termination for failure to comply with a vaccine mandate would not be eligible for unemployment. They will consider such factors as the business necessity of the mandate.
As mentioned in the webinar, an unpaid leave of absence or other accommodations could be another possible alternative to termination.
Q: Isn’t it against your HIPAA privacy to ask someone if they are vaccinated? What about asking for proof of vaccination?
A: Employers are allowed to ask vaccination status of applicants as well as employees, in the context of meeting a job-related requirement. The employer must ensure that there are no additional questions such as “why not?” or other questions that would require them to reveal protected medical information including a disability. This would only be allowed when considering a medical accommodation request.
Similarly, employers can request proof of vaccination. Options to do so include a signed attestation by the employee, seeing the vaccination card and documenting that but not retaining a copy of it, or retaining a copy of the vaccination card. A copy of the medical card would be considered a medical record and should be treated as such.
Q: How do you uphold privacy concerns when folks are restricted from areas, required to wear masks, etc.?
A: Any restrictions can be made required for non-vaccinated individuals and optional for vaccinated individuals. How such restrictions are carried out depends on the specifics of your environment.
One example is that you could treat the absence of these restrictions (e.g., access to certain areas, not being required to wear a mask, etc.) as a privilege available to only those who are vaccinated and willing to waive their right to privacy of their vaccination status. If there needs to be a visual designation for those who are eligible, employers could consider such indicators as a sticker on their badge or company ID card, a bracelet, a pin, etc.
Q: I wanted to make sure I heard correctly – the proof of vaccination card is a medical record and has to be kept for 30 years.
A: If a copy is maintained in the employee file, our interpretation of OSHA regulations is that this would be a medical record.
Per OSHA, “Medical records must be maintained for the duration of employment plus 30 years, except that the following types of records need not be retained for any specified period:
- Health insurance claims records maintained separately from the employer’s medical program and its records;
- First-aid records (not including medical histories) of one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters, and the like which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job, if made on-site by a non-physician and if maintained separately from the employer’s medical program and its records; and
- The medical records of employees who have worked for less than (1) year for the employer need not be retained beyond the term of employment if they are provided to the employee upon the termination of employment.”
Q: What if I am not religious but still do not want to receive the vaccine?
A: Exemptions are only granted for medical or sincerely-held religious beliefs. If a vaccine is not mandated but instead voluntary, you could request accommodations such as working fully remote, but the accommodation would not have to be granted. It is really up to the employer policy.
FEDERAL COVID-19 ACTION PLAN
Q: Will the OSHA requirement apply to remote workers of employers with 100+ employees as well as in-office workers?
A: The Department of Labor has made it clear that OSHA’s Emergency Temporary Standard will not apply to remote workers provided they don’t come into the office.
However, note that the vaccine mandate issued for federal contractors through Executive Order 14043 does apply to remote workers, as stated in an FAQ document issued by the Safer Federal Workforce Task Force.
Q: Employers that have employees in multiple states will require specific location-based compliance? They are unable to have one corporate-wide policy?
A: Employers with multiple locations can conceivably have a single policy, as long as it complies with the requirements for each state where they are doing business.
Q: The 100 employees, is that in one location or overall?
A: OSHA has issued information in advance of the ETS that says that the 100-employee coverage threshold will be determined by the size of the overall employer and not one physical worksite.
Q: Will you have to keep their position open if you put them on unpaid leave for failure to comply?
A: It depends. If the unpaid leave is not being provided as an accommodation under ADA or Title VII, the employee would not be granted any rights or protections. In that case, the position would not have to be kept open but can be, based on your policy and staffing needs.
Q: Is there a projected date for OSHA to release the Emergency Temporary Standard?
A: No, but we have read projections from 2 weeks to 2 months. We will update this information as soon as it becomes available.
Q: Does the federal requirement apply to organizations with less than 100 employees?
A: The Executive Order that mandates vaccinations for federal employees and federal contractors applies to those relevant organizations, regardless of the size of the employer. Other provisions of the federal plan will mandate vaccinations for certain healthcare workers, regardless of the size of the employer. The forthcoming OSHA Emergency Temporary Standards will only apply to employers with 100+ employees.
Q: Can you cover the government connection a little more? Do we have options for vaccinations, or is it required with no exceptions?
A: All federal employees will be required to be vaccinated — with no option for testing instead — no later than November 22, 2021. In addition, federal contractors under new, extended, or renewed federal contracts will be required to be vaccinated. Those under existing federal contracts are not yet required to meet the vaccination requirements. Federal contractors who only sell products to the federal government as a customer will not be subject to the Executive Order.
Medical and religious exceptions may be considered, but only if these can be accommodated without breaching the mandate. An example would be to allow a federal contractor to work remotely.
Q: Do doctor’s offices fall under healthcare settings where they must be vaccinated?
A: From the White House COVID plan at https://www.whitehouse.gov/covidplan: “The requirement for vaccinations is ‘including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies”. We will provide additional details as soon as they become available.
Q: For federal contractors, did I understand correctly that they have to be vaccinated even if they don’t physically go to government sites?
A: The vaccine mandate issued for federal contractors through Executive Order 14043 does apply to remote workers, as stated in an FAQ document issued by the Safer Federal Workforce Task Force.
The exception for remote workers is only expected to apply for employers with more than 100 employees under OSHA’s Emergency Temporary Standard, provided they don’t come into the office.
Q: For subcontractors who work on a job site whose general contractor is working under a federal contract – are they mandated also?
A: If working at the same job site, they are included as well under new, extended, or renewed contracts (as explained above).
Q: For vaccine surcharges, is there a limit on the penalty amount if it’s tied to medical premiums (e.g., does it have to consider EEOC wellness limits)?
A: Yes, HIPAA has some restrictions, and the resulting premium must still meet affordability requirements under ACA if the employer is an ALE (applicable large employer)
Q: Do premium surcharges for unvaccinated employees need to be taken into consideration for the ACA affordability rules?
A: In order to avoid triggering a penalty under the ACA, the cost for employee-only coverage under the lowest cost health plan option can be no more than 9.83% of the employee’s income. Depending on current health plan premiums, even a small surcharge can cause premiums to exceed the affordability threshold for lower-wage employees.
Q: Is the health insurance marketplace (Obamacare) mandating a premium surcharge for those who are not vaccinated?
A: Not at this time.
Q: How is it not discriminatory to impose a surcharge on a premium? And what if it is determined that the vaccinated are the ones increasing medical costs?
A: There have been ample instances shown of imposing a premium surcharge that ties into the wellness program rules under HIPAA, e.g. a smoker’s surcharge. At the time of publication, there has not been a legal determination or review to confirm this, so it may change.
BROKER COMPENSATION DISCLOSURE
Q: Regarding Broker Comp Disclosure: as an employer, do I need to provide this information to our employees during Open Enrollment?
A: No, there is no reason or requirement to share this information with the general workforce population.
Q: Do brokers need to provide the disclosers for individual plans too? Or only group plans?
A: The Broker Compensation Disclosure only applies to group health plans, not individual plans.
Q: Is there an approved format for disclosing the broker compensation?
A: We are waiting for guidance from Health and Human Services and/or IRS for the format to be used.
Q: The 5500 form is a public document. Can broker compensation documents, outside the 5500, be considered protected and not public?
A: We are waiting for guidance from Health and Human Services and/or IRS on what level of information may or must be made available to the public.
Q: Marketplace coverage – is the subsidy available for up to 150% of the Federal Poverty Level (FPL)?
A: Subsidized ACA out of pocket rates are as follows:
Between 100% and 200% of FPL: $2,900 individual, $5,800 family
Between 200% and 250% of FPL: $6,950 individual, $13,900 family
Above 250% of FPL: $8,700 individual, $17,400 family
Q: Does mental health parity apply to all markets – individual, small employer and large employer plans? Also government vs private plans, self-insured?
A: The Mental Health Parity applies to all plan types. The intent is to ensure that mental health and substance abuse conditions are treated the same as other medical situations not be.