Employers Are Moving Ahead with Mandates: Staffing Firms Should Get on Board

Federal mandate or no federal mandate, some employers may require employees to be vaccinated or get regular testing. Employers making use of temporary employees may expect staffing companies to get those employees vaccinated, especially in the health care and hospitality industries. Employers are struggling to find full-time workers and may rely on temporary help to sustain them short term.

Staffing firms need to consider whether it is in their best economic interests to require vaccinations, putting themselves a step above their competition. It’s also unsettled legally and legislatively, at the state level, whether COVID should be considered a work-related illness for purposes of workers’ compensation.

The Occupational Health and Safety Administration—otherwise referred to as Fed-OSHA—has suspended its COVID vaccine emergency temporary standard (ETS) until further notice. States, including California, have followed suit, suspending any further discussion on guidance. One size does not fit all, but according to the suspended ETS, staffing firms who place employees at a host employer location “only the staffing agency would count these jointly employed workers for purposes of the 100- employee threshold for coverage under this ETS.” That being said, even without a mandate, a host employer may require the staffing agency to ensure that temporary employees are fully vaccinated or tested weekly and wear face coverings.

It’s important for a staffing firm to consider what standard its workforce can meet considering the profession, demographic and size. Requiring proof of vaccination is the most equitable approach, especially if that is all a host employer will accept. Staffing firms should consider giving paid time off to employees to get their vaccinations and arranging on-site vaccination clinics for them and their families.

As part of the vaccination policy, employee questions about the safety and the efficacy of the vaccine (given the rise in break-through cases) should be addressed thoroughly. Staffing firms should have a written policy in place regarding vaccinations, including information addressing specific concerns. Ignoring the concerns may cause pushback. Be aware of medical and religious exemptions as well and include those in your policy. Another consideration are those instances where temporary employees can work from home. These arrangements should be discussed with host employers as part of the vaccine requirements.

The Health Action Alliance suggests companies, including staffing firms, identify opportunities to partner with state and local health agencies to support vaccine distribution. Another HAA suggestion is for employers to gather employee feedback in real time so issues and concerns can be addressed right away.

Impact on Workers’ Comp

If a temporary employee contracts COVID and it can be established that the illness was work-related, lengthy illness and possible hospitalization could have a negative impact on experience modifications. As the Christmas season moves in retailers may rely on temporary help through December. It is also the time many states, especially in the Northeast, will see an uptick in cases as the weather gets colder.

Some states, California for one, have passed laws establishing a COVID rebuttable presumption for some categories of employee including health care workers. A bill is advancing in Idaho that would allow employees who get sick after receiving an employee-mandated vaccine to receive workers’ compensation. There are number of states pushing back on mandates including any future federal ones. Florida wants to withdraw from Fed-OSHA.

The weather and possible new variants may concern employers enough to require vaccines, at least for some of their workforce including temporary employees. Doctors and medical data have shown consistently that while break-through cases are on the rise, they are still a small percentage of the COVID cases. People are also likely to get less sick and suffer serious side effects, if they’ve been vaccinated. There is limited data on the new Omicron variant. It is unknown how effective the current vaccines will be. Nonetheless, this should not discourage staffing firms from pushing ahead with vaccination efforts.

Industry and State Vaccine Rates

The most recent data show the industry with the lowest rate of vaccination is agriculture (49%). This is followed by construction (55%), food and beverage (61%), manufacturing (64%), and transportation (64%).1 These are all industries that rely on temporary workers. Transportation is concerning given the supply chain issues. Trucking associations are pushing for and may succeed in getting exemptions, especially since truckers do not actually report to an office. But the Biden administration is planning to mandate a vaccine requirement for essential travel that crosses U.S. Borders. This includes truckers. It would take effect in 2022.

Health care workers who have been subject to vaccine mandates, have one of the highest rates at 70%. White collar workers also have a greater percentage of vaccinations.

As for states, data have shown that blue states have higher rates of vaccination, especially in the Northeast and California. In blue states fully vaccinated residents range between 72%-61%. But red states are catching up. In Florida 71% of the population has had one dose and 60% of the population is fully vaccinated. 2 This may not prevent an uptick in infections as cold weather sets in, especially in blue states. According to a recent survey of 500 employers, more than 50% of employers are requiring a vaccines in the workplace, most of which are in California. 3 Many of the largest employers at least for employees in the U.S. are implementing some kind of vaccine requirement for those employees who come into the office including Cisco, Amtrak and MGM Resorts International. Union Square Hospitality Group requires vaccinations for staff and guests. Fashion companies and retailers including Saks and TJX also have requirements for employees.

In some red states governors are pushing back on mandates of any kind including employer mandates. This may require staffing firms to encourage vaccinations by making it more convenient and accessible, should court challenges and state efforts prove unsuccessful.

1. These industries have low vaccination rates—and that could be a big problem for vaccine mandates, Megan Leonhardt, Fortune, Oct. 21, 2021

2. US Coronavirus Vaccine Tracker, US Facts, Nov. 24, 2021

3. The New Workplace Employer Report, Sequoia, ABC 7 News, Nov. 17, 2021