CLOSING ENTRY: Time to get ready

How employers should plan for the federal vaccine mandate

Ray Kim and Daniel Kuperstein//November 8, 2021//

CLOSING ENTRY: Time to get ready

How employers should plan for the federal vaccine mandate

Ray Kim and Daniel Kuperstein//November 8, 2021//

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If you run a large or mid-sized private business, chances are you’ve had your eyes peeled for updates on the federal vaccine mandate, originally announced by the Biden administration earlier this year.

So far, we know the Occupational Safety and Health Administration and the Biden administration intend to require private-sector workers at businesses with 100 or more employees to be vaccinated against COVID-19 or get tested for COVID-19 on a weekly basis.

When finalized, the regulation will be issued in the form of an OSHA emergency temporary standard. We expect it to include important details on how employers can implement the weekly testing alternative (the “test-out alternative”). We’re also waiting on guidance from the Department of Labor on who is financially responsible for the weekly testing. So far, there haven’t been any hints to suggest there will be federal assistance, so employers should plan to shoulder this expense.

Clearly, this could be a daunting—and costly—program.


Developing your strategy to comply with the ETS today will offer a leg up in the race for compliance when the final regulation comes down. Here ae some considerations as you get started.

Understand the scope

Though confirming vaccination status will be a complex administrative process, most employers will be well-advised to focus their attention on the weekly testing alternative first. This will be more costly and will require ongoing maintenance.

To adequately prepare, consider an anonymous employee survey on vaccination status and interest in future vaccination. Using this survey, you should be able to estimate the cost of regular testing and budget accordingly.

This might also be a good time to revisit a vaccination incentive program—more on that in a minute.

For some employers, the cost of weekly COVID-19 screenings may be manageable without additional legwork. For most, however, developing a strategy for reducing or recouping testing costs will be vital.

A premium surcharge for unvaccinated employees is one way to cover these costs and encourage employees to get vaccinated. The DOL, Treasury and Health and Human Services recently issued FAQ guidance confirming employers may implement COVID-19 vaccination surcharges under employer-provided group health plans. Considered “activity-only” health-contingent wellness programs, any vaccine premium incentive must comply with HIPAA wellness program regulations.

Another way to avoid testing costs is to eliminate the test-out alternative altogether. The federal mandate is meant to act as the minimum requirement across employers—private companies are within their rights to create more restrictive programs, as long as they offer reasonable accommodations for employees who cannot get vaccinated due to disabilities or sincerely held religious beliefs compliant with guidance issued by the EEOC in May 2021.

While implementing a stricter vaccine mandate policy than what the federal rules require can lead to cost savings, not offering a test-out alternative may lead to increased employee dissatisfaction or turnover. Organizations should consider the results of their vaccination status survey and their specific circumstances in evaluating this option.

Build your team

Once you know the scope of impact and you create an appropriate strategy for reducing or recouping costs, the next step is to decide whether the administration of these rules will be handled in-house or require an outside solution.

For example, employers with multiple locations or many remote employees might benefit from a third-party vendor that makes these complex administrative processes easier.

Among other considerations, employers should ensure that the vendors they’re considering have a successful core business with a proven track record. As the need for this type of administration grows, we may see many unproven startup—or even opportunistic—companies emerge. Employers should be cautious and ensure they are working with reputable partners. Relying on your trusted employee benefits consultant to recommend vendors can make this easier.

Ray Kim is regional vice president, account management at Corporate Synergies. Daniel Kuperstein, is senior vice president, Compliance at the firm.