Plan Now for Jan. 4 Deadline: Businesses with More than 100 Employees Face Vaccine Mandate

by Mark Zeidman, Attorney/Shareholder

The federal Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) requiring all employers with at least 100 employees to ensure their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing. Coming on the heels of the vaccine mandate for federal employees and contractors, this ETS, which affects over 80 million private-sector workers, constitutes one of the most forceful steps taken by the federal government to help end the COVID-19 pandemic.  However, the Fifth Circuit Court of Appeals has issued a stay directing OSHA to take no steps to implement or enforce the ETS.  For now, covered employers must prepare for the possibility of having to comply on short notice. But there is also a reasonable chance that some or all of the OSHA ETS’s provisions will never become applicable.

Who counts towards the 100 employees?

  • Includes all full-time and part-time employees, minors, seasonal and temporary employees
  • Does NOT include/apply to:
    • Independent contractors
    • Healthcare employers that participate in Medicare and Medicaid programs
    • Only the staffing agency, and not the site operator, must count the workers it supplies to a worksite. However, if the staffing agency has 100 or more employees, the site operator would still have obligations as a joint employer to ensure those workers comply with the ETS.

What employees are covered?

  • Unless an express exception applies, the OSHA ETS applies to all employees of covered employers.
  • The OSHA requirements do not apply to employees:
    • Who do not report to a workplace where other individuals, such as coworkers or customers, are present;
  • While working from home; or
  • Who work exclusively outdoors.
  • Some exceptions are also permitted as accommodations to employees based on medical conditions or religious beliefs. OSHA has published forms relating to these exceptions.

What should qualifying business owners do now?

  • Implement a mandatory vaccination policy that require vaccination of all current and future employees. The policy must:
    • Include a process to accommodate employees who cannot get the vaccine because of medical or religious exemption
    • State that all covered employees are required to get the vaccine, submit to weekly testing or agree to work remotely

How does a successful weekly testing program work?

  • Employees who are not fully vaccinated must submit to weekly testing
  • Employees who are not in the office daily must submit a negative test upon return
  • Employers may allow COVID-19 tests to be either self-administered or self-read, but not both
  • Any employees who test positive for COVID-19 must be removed from the workplace
  • Employers are not required to provide paid leave during the removal periods

What about face masks for employees who are not fully vaccinated?

  • Employers must require face coverings for unvaccinated employees while they are indoors or while in a vehicle with another person for work-related travel
  • Employees with a disability that may make it difficult to wear face coverings or employees with a sincere religious belief may be entitled to an accommodation
  • Refer to the Equal Employment Opportunity Commission’s guidance for more information on accommodations

Can employees get paid time off to get the vaccine? What about for side effects from the vaccine?

  • Employers are required to allow up to four hours of paid time to get the primary dose of the vaccine
  • Booster doses are not included
  • Employers are required to provide a reasonable amount of paid time for side effects after the primary dose
  • This paid leave must be mentioned in the policy
  • Employers cannot terminate an employee if paid time for the vaccine is considered excessive
  • Employers may create an on-site vaccination clinic to minimize paid time away

What documents does an employer need to have to prove vaccine status of employees?

  • ETS requires employers to keep proof of vaccination, which can be a copy of:
    • the vaccination card
    • record of immunizations from a healthcare provider
    • medical records with proof of vaccination
    • any other official document showing the date of vaccination, name of vaccinated and name/location of person who administered the vaccine
    • a statement from an employee attesting to vaccine status (different from the federal contractor rule)
  • Employers must maintain all proof of vaccination status while the ETS is in effect

Employers must report any COVID-19 deaths within 8 hours of learning of the death, and all in-patient hospitalizations must be reported within 24 hours.

Covered employers could face penalties of up to $13,653 per violation of the OSHA ETS. Penalties for repeated and willful violations may reach up to $136,532 for each offense. Proposed legislation could increase those penalties by up to 10 times their current amounts.

States with their own OSHA program must be as effective as the federal OSHA ETS program in protecting workers from COVID-19 hazards. Texas does not have its own OSHA approved program and employers in Texas must follow the federal OSHA rules.

Employers who are or think they may be subject to this mandate and have any questions about complying with all or parts of the requirements should discuss this subject with counsel.


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