The Supreme Court last week blocked Biden’s Vaccination Mandate for private employers with 100 or more employees, by a 6-3 vote. Companies will no longer have a federal mandate as a cover for requiring vaccinations. With Covid-19’s Omicron variant surging during a labor shortage, breaking records for new cases, and with about 90 percent of Covid-19 hospitalizations being among the unvaccinated and costing more than $13 billion of the national healthcare spend, what should employers do?
First, decide if you want to impose your own mandate. Companies can impose their own mandates in all but one state, Montana. Eleven states require mandates in some industries. Ten other states have restrictions on vaccine mandates. It is wise to check to see if your state has any requirements or restrictions. Mandates were first implemented in hospitals, and they have achieved high vaccination rates among their employees, while also offering processes to obtain medical disability and religious exceptions. The courts have upheld these mandates. According to NBC News, 39 companies have implemented their own vaccine mandates, including American Express, Cisco, McDonalds, Salesforce, and Walt Disney.
Second, gauge the concerns of your workforce and determine how best to communicate that vaccines can safely and reliably reduce the
chances of catching Covid-19 and how the vaccine and boosters reduce the chances of severe illness, hospitalization, and death. Also weigh the obvious benefits of lowering illness and absenteeism among your workforce by reducing Covid-19 cases.
Third, develop a Covid-19 vaccination and testing policy. According to Fisher Phillips, the policy at a minimum should include these requirements:
- employees must report positive COVID-19 tests
- positive COVID-19 employees must be removed from the workplace
- employees must get paid leave to get vaccinated
- unvaccinated and not fully-vaccinated employees must wear face coverings when indoors or when occupying a vehicle with another person.
- non-vaccinated employees must be tested regularly — specify how often. (Weekly is common.) Time required to receive tests must be compensable.
- a clear and reasonable accommodation policy must address religious and medical disability exemption requests.
Fourth, consider offering a bonus (cash, time-off) for employees who can prove they are fully vaccinated, and then again for boosters. The EEOC has ruled that incentives are legal as long as they are not coercive (by being too large).
Fifth, consider imposing a health insurance surcharge on non-vaccinated workers. It is legal at the federal level, but check for any restrictions in your state. The average cost of a Covid-19 stay in the hospital is $42,000. Companies like Delta Airlines have implemented surcharges on the non-vaccinated at $200 a month.
Sixth, thoroughly communicate your policy, explain why you are implementing it, allow for questioning by employees, and give employees 60 days to comply.
Seventh, the Americans with Disability Act (ADA) has determined that employers can ask employees if they are vaccinated, including HIPAA covered entities, and require them to show proof of it, but you must keep this information private. 
Eighth and final, if you have a hybrid work model, flex it to allow employees who work in the office to work more from home, eliminating their exposure to catch Covid-19 from co-workers. Additionally, it may enable an ADA accommodation to employees who object to Covid-19 vaccinations and boosters to work from home, avoiding the need to be vaccinated.
Documentation or other information regarding an individual’s vaccination status are confidential medical information under the ADA and some state privacy laws. This means that you must treat this information as confidential and store it separately from the employee’s personnel file.
Covid-19 has become endemic, and companies and employees need to learn to live with it until its new cases and death rate matches the flu. Requiring vaccine mandates, mask-wearing, and weekly testing is up to employers. These steps, however, will help keep your employees safe and your business open and profitable during the current Omicron surge — and the variants that will follow.
Victor Assad is the CEO of Victor Assad Strategic Human Resources Consulting and managing partner of InnovationOne.. He works with companies to transform HR and recruiting, implement remote work, and develop extraordinary leaders, teams, and innovation cultures. He is the author of the highly acclaimed book, Hack Recruiting: the Best of Empirical Research, Method and Process, and Digitization. Subscribe to his weekly blogs at www.VictorHRConsultant.com.