Update: On Thursday, January 13, the United States Supreme Court invalidated the Occupational Safety and Health Administration (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS was initially scheduled to take effect in December 2021 and had been on hold while under judicial review.
Grace Hill spoke to three firms about their approach to comply and keep employees safe.
Apartment companies are taking steps and discussing strategies to handle Thursday’s U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) rule mandating U.S. companies with 100 or more employees to require COVID-19 vaccinations or weekly testing for their workers.
Others are watching as some states file lawsuits against the rule. As of Sunday, at least 27 states (including at least three Democrat-led states) had filed a lawsuit against OSHA’s mandate, filing lawsuits in the U.S. Court of Appeals.
Just two days later, CNN and others reported that a federal appeals court temporarily blocked the Biden administration’s new vaccine rules that could apply to larger employers, certain health care workers, and federal contractors.
In the brief order, a three-judge panel on the Fifth Circuit Court of Appeals said that the petitioners in the case — Republican-led states and private businesses — “give cause to believe there are grave statutory and constitutional issues with the Mandate.”
The court asked the government to respond by 5 p.m. on Monday and said it would expedite the case. The court did not specify whether its order would have a nationwide effect or only apply to the states under its jurisdiction.
“By limiting the scope of the rule to exclude those who don’t come into the workplace or who work outside, and by allowing testing and masks as an alternative, OSHA has made it more likely this rule will withstand judicial scrutiny,” Michael Menssen, an attorney with Stoel Rives in Salt Lake City, told Marketwatch.
Otherwise, employers have until Dec. 5 to put their policies in place. OSHA’s rule states:
- Workers must be fully vaccinated by Jan. 4 or submit to testing.
- Employers are required to provide paid time off for workers to get vaccinated and paid sick leave for them to recover from any side effects.
- Workers who aren’t vaccinated are required to submit a weekly negative COVID test at no expense to their employer. Unvaccinated workers are required to wear masks when on the job.
- Employers not enforcing OSHA’s rule could be cited by the agency and face up to $13,653 for each serious violation.
- A willful violation, essentially an employer deliberately disregarding the mandate, could lead to a fine as high as $136,532.
Companies such as Camden and McCormack Baron Salazar Property Management Company already had mandates in place. They are simply ahead of the game as they continue to follow guidelines from the Centers of Disease Control (CDC) as they — and most other apartment companies — have been doing all the while.
Remote workers and those who work exclusively outdoors are exempt from the vaccine-or-testing requirement; however, they are included in determining if an employer has 100 workers.
The Biden administration’s emergency COVID-19 vaccination requirement could be expanded in the future to employers who have fewer than 100 workers. OSHA is seeking public comments on that aspect of the standard, and it ultimately may be expanded to include smaller businesses, the agency said Thursday.
Some business advocacy groups say the rule comes at a potentially inopportune time, as it is overly burdensome, especially as some businesses are struggling to find workers in the run-up to the holiday season.
Documenting employee participation is an ongoing challenge for some, while others have already partnered with third-party companies to administer the task.
With Policies Already in Place
Kristen Smith, Vice President of Human Resources, McCormack Baron Salazar and McCormack Baron Management (MBS-MBM), St. Louis, said the company announced to its 550 employees in mid-September that the company is mandating the vaccine and staff must prove vaccination by Nov. 19.
The company is a leading for-profit developer, manager, and asset manager of economically integrated urban neighborhoods and manages approximately 22,000 apartment homes nationally.
Smith said MBS-MBM has had only two resignations resulting from the vaccination mandate, and most employees have been compliant with the policy.
“Overall, employees have embraced the requirement, but some have expressed their uncertainty about the vaccine and its long-term side effects,” Smith said. “Our goal is to create a healthy work environment where all employees can feel safe and to set a good example for the communities that we serve.”
The company established a tracking and outreach system to effectively track employee vaccination status and communicate with staff who have not yet submitted proof.
“We are certain that most of our employees have been vaccinated and expect a high percentage will submit their proof by the deadline,” Smith said. “However, those individuals who do not show proof of vaccination or exemption by Nov. 19 will be put on a 30-day unpaid leave, and those non-compliant beyond this period will be subject to further measures, including termination of employment,” Smith said.
Employees who wish to file for exemption due to religious or medical reasons have their cases brought to a small internal committee for review. They look to see if creating a reasonable accommodation, such as having that person work from home, would create an undue hardship for the company.
McCormack Baron uses a third-party company, HRO Partners, to administer its vaccination tracking. HRO Partners has been the company’s resource for managing benefits, and this became an added service.
Camden became the first major apartment industry company to institute a mandatory vaccination policy last summer when it told its 1,700 employees in August that they must be vaccinated by Oct. 11 to maintain their jobs.
Camden Senior VP of Human Resources, Cindy Scharringhausen, said on Oct. 29 that 99% of the Houston-based company’s workforce has complied with the vaccination program. She said only a small handful of employees chose to leave the company based on the policy.
CDC Guidelines as a Beacon
Dana Hill, Senior Director of Engagement, RangeWater, which has about 1,130 employees in its portfolio located throughout the Southeast, said,“From the onset of the pandemic, RangeWater established an internal COVID-19 task force to support team members and residents alike. The team regularly discussed Centers for Disease Control (CDC) guidelines, on-site, and home office policies and regional trends to forge a safe path forward.”
The task force is meeting now to discuss OSHA’s announcement.
“Our company has remained consistent in following CDC recommendations and, with the help of our executive leadership, continue to communicate often and clearly to our team members.”
Among the staff’s requirements are wearing masks at the properties no matter what and maintaining social distancing. In our corporate office, employees who are not vaccinated must wear masks at all times while in our common areas.
“These past two years have been a challenge for everyone, and I’m particularly proud of how sensitive everyone has been toward each other. Employees are ‘checking-in’ on each other about their mental and physical wellbeing. This level of personal care speaks to the incredible culture of our company.”
Waiting To See What Happens
Ken Reichert is Vice President of Human Resources at Dallas-based Anterra Property Management, with a portfolio exclusively in Texas that includes 28 properties and 7,500 apartment homes.
“We will follow any OSHA rules or regulations. It’s an evolving situation. We’re leaving the door open to see what happens. Come Jan. 4, tracking this information will be a pain point, but soon after, a plan will be in place that works well for us.
“We encourage our employees to receive the COVID-19 vaccine, but we don’t require it. We request that new hires provide vaccination verification but do not require it. We’d require proof of results from weekly testing, per OSHA’s rules.
“We see that testing is free to persons who were exposed to COVID-19 or if they can find a free testing location. If you simply go to your private doctor for a test, you will be charged. It’s a ticklish situation.”
About 75% of its staff is vaccinated, Reichart said Thursday. This year through Sept. 30, Anterra offered a $100 incentive for employees to be vaccinated.
Each full-time Anterra employee earns 15 PTO days during their first year (earned each pay period based on hours worked), and they can take the time as it is earned. The company pays regular wages for the time needed to be vaccinated and, if necessary, to recover, as required by the federal government.
Anterra will pay for the first five work days should a fully vaccinated employee test positive (a breakthrough case) if they cannot work from home.
Should an unvaccinated Anterra employee test positive, they would need to use their PTO time to cover their first five days before being eligible for the company-paid short-term disability.
A Harris Poll conducted early last month found that about half of those surveyed reported they’d be likelier to accept a position at a workplace with a vaccine mandate, while 29 percent said they would be less willing to work for such an employer. Among those likelier to accept a position under that condition, nearly three in every five said they believed a vaccine mandate would be necessary to end the coronavirus pandemic.