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Federal Vaccine Mandates: Step-by-Step Compliance Guide for Community Action

This step-by-step compliance guide is intended to help the Community Action network navigate the employee vaccination mandates announced by OSHA, Head Start, and the Centers for Medicare & Medicaid Services (CMS). We describe the planning process your CAA should consider as you develop and update your policies to reflect the new requirements. We also provide template policies and additional resources to assist CAAs in preparing for and implementing the mandates. We will update this resource as additional guidance is issued and legal developments arise.

11/17/21 update: OSHA has suspended implementation and enforcement of the OSHA ETS pending the outcome of current litigation.

Your CAA should review and update existing written leave policies to ensure compliance with applicable federal vaccine mandates. Under the Uniform Guidance (2 C.F.R. § 200.431 or 45 C.F.R. § 75.431), paid leave is an allowable cost, i.e., may be paid for with federal funds, if it is reasonable, is administered under an established written leave policy, is equitably allocated to all related activities, and is charged using a consistently followed accounting basis for costing each type of leave.

OSHA ETS

Employers bound by the OSHA ETS must provide reasonable time, including up to four hours of paid time off at the employee’s regular rate, for employees to receive each primary vaccination dose. Employers must also provide employees with reasonable time and paid sick leave to recover from any side effects that result from a primary vaccine dose. Although not explicitly a requirement of the ETS, OSHA presumes that providing employees with two days of paid sick leave per primary vaccine dose is reasonable for purposes of this requirement.

If an employee has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a vaccination dose. If an employee does not have available paid sick leave, the employer must provide it for this purpose. Additionally, if an employer does not specify between different types of paid leave (i.e., employees have a single bank of Paid Time Off (PTO) to encompass both vacation and sick leave), the employer may require employees to use that leave when recovering from vaccination side effects. However, if the employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects.

Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects. An employer also may not require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects. In other words, the employer cannot require an employee’s sick leave balance to go into the negative if the employee does not have accrued paid sick leave when they need to recover from side effects experienced following a primary vaccination dose.

CMS Rule

The CMS rule does not provide paid leave for employees to receive and recover from vaccinations, but to the extent that the employees are also covered by the OSHA mandate, they must be provided with such leave.

Head Start

The Head Start rule does not provide paid leave for employees to receive and recover from vaccinations, but to the extent that the employees are also covered by the OSHA mandate, they must be provided with such leave.

OHS has indicated in previous guidance that programs may use regular Head Start funds, as well as funds allocated by the Coronavirus Response and Relief Supplemental Appropriations (CRRSA) and the American Rescue Plan (ARP) Acts to support staff health and wellness efforts, including providing adequate paid vacation and sick leave for staff. Indeed, OHS specifically encouraged programs to use one-time ARP and other COVID-19 relief funding to support staff retention by ensuring they have “sufficient paid leave, including to receive the COVID-19 vaccine and recover from any side effects.”

This resource is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance Center. It was created by CAPLAW in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services, Cooperative Agreement Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.