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November 5, 2021

 

COVID-19 Update on Vaccine and Testing Mandates


Following the Biden Administration’s Path out of the Pandemic, the Department of Labor’s Occupational Safety and Health Administration (OSHA) released a rule this week, via an Emergency Temporary Standard (ETS), to implement a vaccination and testing mandate for employers with over 100 employees.  The ETS is here: COVID-19 Vaccination and Testing Requirement. 

This rule applies to all U.S. employers with 100 or more workers, to ensure employees are either fully vaccinated for COVID-19 or tested each week for the virus. The worker count must consist of ALL employees, including full-time, part-time, and seasonal workers, but does NOT include independent contractors.  The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard.  Thereafter, employers whose workforce increases to meet or exceed the threshold would then also fall within the scope of the ETS.  However, once the threshold is met, a reduction in workforce WILL NOT relieve the employer of their obligation to comply.  For a single corporate entity with multiple locations, all employees at all locations are counted.  In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.

 
COVID Mandate for Employers

  • The employer mandate will require employees to be fully vaccinated by Jan. 4. 
  • Employees who are not fully vaccinated by Jan. 4 have to produce a verified negative test to their employers every week.
  • Employees who are not vaccinated must begin wearing a mask at work as of Dec. 5.
  • Workers who test positive for COVID-19 or receive a diagnosis from a licensed health care provider have to be removed from the workplace.
  • The rule does not require employers to pay for the tests, though agreements with unions might require employers to cover the bill.
  • Starting on Dec. 5 covered employers are required to provide workers with paid time off to receive vaccinations, as well as sick leave to recover from vaccination side effects that preclude working.
  • Employer penalties for noncompliance with OSHA's rule could include fines based on the number of violations and range up to approximately $13,653 for a single violation.
  • Fines up to $136,532 may be imposed for employers who willfully violate standards.
  • OSHA plans to carry out inspections.

 
The new rule preempts any inconsistent state or local laws, including those banning or limiting an employer's authority to require vaccination, masks or testing.  The National Retail Federation (NRF) further summarizes the ETS below.
 
ETS Summary
 
By December 5, employers must:

Assess their workforce to determine who is and who is not vaccinated. Must categorize into:

  • Vaccinated. Employers cannot take employees’ self-attestation. Employers must see their vaccination cards and we must threaten them with criminal penalties for filing fraudulent information.
  • Unvaccinated and willing to get the shot. These workers must then start the process of vaccination to avoid weekly testing. Workers need to have received BOTH SHOTS by January 4, 2022. Thus, they must start the Pfizer regiment by December 14 or the Moderna regiment by December 7. Employers must offer up to four hours of paid time off, including travel time, at the employee’s regular rate of pay per dose for employees to get vaccinated. Employers may not require employees to draw down vacation time for this purpose. Employers must provide paid sick leave for a “reasonable time” to employees to recover from side effects but can insist this leave come from accrued time off.
  • Those for whom a vaccine is medically contraindicated.
  • Those for whom medical necessity requires a delay in vaccination.
  • Those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
  • Refusers

Impose a mask mandate for unvaccinated employees. Mask must always cover the nose and mouth while working indoors. Masking required when occupying a vehicle with another person for work. when an employee is alone in a room with closed door. No masking required while the employee is eating or drinking. No masking required if it “creates a greater hazard.”
 
Employers must inform each employee about:

  • The requirements of the ETS
  • Any employer policies and procedures established pursuant to the ETS.
  • The efficacy, safety, and the benefits of the COVID-19 vaccine, specifically a copy of this document: “Key Things to Know About COVID-19 Vaccines”
  • The fact that employers are prohibited from discriminating against an employee for reporting a work-related injury or illness and from discriminating against an employee for exercising rights under the ETS or the OSH Act.
  • The existence of criminal penalties for knowingly supplying false statements or documentation.

 
By January 4, employers must:

Implement a vaccine mandate and ensure that all workers are vaccinated.
OR
Allow unvaccinated workers into the workplace if and only if they produce a negative test weekly and don masks. Employers choosing this option must create a weekly testing regime for unvaccinated employees. Any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider must be removed from the workplace. Employers may pass on the costs of the weekly testing to unvaccinated employees provided they do not have a disability-based or religious-based exemption. As for kinds of test, simple home rapid antigen test kits are acceptable, but the test cannot be both self-administered and self-read by the employee. The test must be done in “the presence of the employer or a healthcare or telehealth test proctor.”
 
The ETS does NOT apply to:

  • Workplaces covered by OSHA’s earlier healthcare ETS
  • Workplaces that are covered by the federal contractor vaccine
  • Employees who do not report to a workplace where other individuals (e.g., coworkers or customers) are present
  • Employee working from home
  • Employees who work exclusively outdoors

 

More details:

Vaccination and Testing ETS FAQs: https://www.osha.gov/coronavirus/ets2/faqs