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Vaccine Mandates: The Remote Worker Question

Editor's Note: To keep the crazies away on both extremes, I present my status and views on vaccination below.

--Vaccination Status: Fully Vaccinated (Pfizer)
--View of Employer Mandates: Supportive that organizations should do what they think is best, especially in healthcare or high contact businesses
--Historic View of Broad Federal Mandates: Not Supportive
--Zodiac Sign: Scorpio (actually Taurus, but Scorpio sounds super credible)


Now that we've got the housekeeping out of the way, let's break down one underreported aspect of the looming vaccine mandates by the federal government via OSHA.

Let's talk about remote workers. Cat

It's interesting to me that thinking about remote workers hasn't gotten more attention since the potential of an OSHA vaccine mandate was announced by the Biden administration. After all, the number of hours worked remotely by the American workforce rose by 500 percent during the pandemic, and many of these workers remain 100 percent remote. 

First up, if you're late to the game and need to know why OSHA is being used for the proposed vaccine mandate, click this link to read up. OHSA's involved because it's the clearest path for the Biden administration to get the mandate done in a legally defensible way.

The bones of the vaccine mandate proposal are pretty simple for the private sector: all employees in companies with one hundred or more employees must be fully vaccinated or submit to weekly COVID tests.

But what about remote workers? If you have an employee who's been Zooming the hell out of her job since April 2020, and there's no sign that she's coming back into the office, what's the requirement for her? Does she need to be vaccinated or tested under the mandate?

The simple answer is that we don't know. The OSHA rule covering this hasn't been released and likely won't be for thirty to sixty days. So, until we get that rule/guidance, we don't know for sure.

But there are some good hooks from a legal perspective in the past week. Consider this from our friends at SHRM, who above all else LOVE A GOOD LEGAL UPDATE:

"The details of what the ETS will include are scarce at this point, leaving many questions unanswered," Fisher Phillips said. How will the 100-employee threshold be counted? Will employers be required to collect proof of vaccination? What type of testing will be required? Will remote employees be covered?

Brightwell thinks it unlikely that the ETS will apply to remote workers under the "grave danger" requirement. If employees are not exposed to anyone in the workplace, the risk of contracting COVID-19 is not work-related."

That's speculation on the part of a legal expert who appears credible. Shirley, modifying your marketing PDFs from her cottage in Montana, would not seem to rise to the level of grave danger.

This specific update from Fisher-Phillips includes a cite from Labor Department late last week goes further and includes dialog with the Department of Labor:

Will remote employees be covered? Unless the ETS specifically addresses remote employees, remote employees likely will not be covered by the emergency rule. OSHA largely avoids addressing safety issues concerning employees working from home.

(Editor’s Note: On a September 10 webinar, Labor Department officials confirmed that remote workers not working in contact with others would not be covered by the emergency rule provided they don’t come to the workspace.)

So it's unlikely that remote employees will be covered. But remember, we have the following classes of remote employees:

1--Fully remote - I've never seen this person live and in the flesh.
2--Hybrid remote - Has a set schedule to be in an office periodically; could be one to two times a week, or one to two times a month.
3--Appears a few times a year to "build relationships" and "meet and greet." ("Shirley's in town for the bi-annual meeting, make sure you say hi.")

In addition, remote workers probably look a lot like the rest of America when it comes to vaccination status, with one big exception:

Most remote workers haven't faced a choice on vaccines. Many are vaccinated, but those who don't want the vaccine have been isolated for awhile. And if you've made the call that they can remain 100 percent remote, it's almost 100 percent guaranteed that the percent of unvaccinated is higher than the rest of America.

And now, we come to the big question and the accompanying reality:

--The Big Question - Do you treat remote employees like everyone else at your company and ask them to get vaccinated or tested?

--The Reality - If you believe that there's a higher percentage of unvaccinated in remote-work America, do you want to take steps that might make them ponder a move to a different employer?

To be sure, the proposed vaccine mandate is not a hard mandate. You can still decide to test the folks who don't want the vaccine, and you'd think you'd be fine. That is, until you start pondering the absurdity of testing a 100 percent remote worker who's not in the workplace with others, and will be reminded of the absurdity of taking a picture of their negative test on a weekly basis and uploading it to Sharepoint.

Yes, I just gave you the path to record keeping for remotes. Take a picture of your test. Upload it to Sharepoint. #winning

At the end of the day, there's no wrong path. Make your call and get ready to communicate if your remotes are included in this.

And yes, there will be key employees moving from hybrid remote to full remote until this is past us.  They'll test on the rare occasions they have to come in, without changing their status from "full remote."

Nothing makes broad calls on a topic like this more personal than the threat of losing great people. 

Good luck with your call on remote employees. 


Rutuja Patil

I am following this page for so long can you please make a blog on Statutory Compliance?

Josh Stumbo

Great thoughts to consider on this challenging topic. It will be interesting to see how this unfolds.

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I have a fever after 1st injection. Everyone needs vaccines to protect themselves. Don't worry too much about the risks.



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Dane Rheinecker

I believe this topic is one that will continue to be a major issue faced by our workforce for the foreseeable future. I personally do not believe that individuals working 100% remotely should be required to be vaccinated. For example, my fathers company allows employees to work remotely but does bot require the vaccine for those employees. Additionally, I do not believe that companies should mandate that all employees must be vaccinated, especially those who are working remotely. An individual's vaccination status is now becoming an HR issue and a problem in the hiring process. HR departments will now have to take this into consideration. Unfortunately the nation is already facing a labor shortage which is magnified more due to many individuals not being vaccinated. HR departments will continue to be stretched thin as this situation progresses and new laws are made. HR will be forced to improve communication in order to overcome the pending challenges they will face.

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You can still decide to test.

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