Vaccine Mandate Update
On September 9, 2021, President Biden announced as part of his COVID-19 Action Plan that he would be directing the Occupational Safety and Health Administration (“OSHA”) to issue an emergency rule requiring all businesses with over 100 employees to mandate that their workforce either be fully vaccinated against COVID-19 or submit to weekly testing. Today, the White House and OSHA released details of OSHA’s Emergency Temporary Standard (“ETS”), which is summarized below.
Who is covered?
Any employer who has more than 100 employees is covered by the new ETS. This is calculated by a total headcount of employees in an organization, without regard to separate locations or parent-subsidiary relationships, at any time the ETS is in effect. However, employees who do not report to a workplace with other individuals, work from home, or work exclusively outdoors are not required to be vaccinated, even if other employees in the organization are.
What qualifies as “fully vaccinated”?
An employee is fully vaccinated against COVID-19 two weeks after he or she has received the second dose of either the Moderna or Pfizer vaccination or the single dose Johnson & Johnson vaccination.
What is required of an employer?
Covered employers must ensure that their workforce is either fully vaccinated against COVID-19, or offer their employees the option to take weekly COVID tests before coming to work in lieu of receiving the vaccine. Any unvaccinated employees must wear a face covering at work or when riding in a company vehicle when someone else is present.
Employers do not have to pay for the testing of their non-vaccinated employees under the ETS but may be required to do so under union contracts or other laws. At this time, there is no state law requirement in Ohio that would require such time off be paid. Employers must require that employees immediately inform them of a positive test and remove such employees from the workplace.
For any employees who are not yet vaccinated, employers must allow them reasonable time off, including up to four hours of paid time, to receive their vaccine. Employers must allow additional paid time off to recover from any potential side effects, if needed.
Employers must also provide the following information to employees: (1) information about the requirements of the OSHA rule and workplace policies and procedures established to implement the rule; (2) the CDC document “Key Things to Know About COVID-19 Vaccines” (available at: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html); (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
What policies must employers adopt? Are there any record-keeping requirements?
The ETS requires covered employers to establish and enforce a mandatory COVID-19 vaccination policy. Employers that choose to permit unvaccinated employees to be tested in lieu of receiving the vaccine must also establish a weekly testing policy and require such employees to wear a face covering at the workplace. Employers also must confirm that their employees are vaccinated, retain records of proof of vaccination, and create a roster of each employee’s vaccination status. Employers will be required to make these records available to OHSA upon request. Employers must also report any work-related COVID deaths to OSHA within 8 hours of learning about them and any work-related COVID hospitalizations within 24 hours.
Do any exemptions apply?
As with other vaccine mandates that have been issued throughout the course of the COVID-19 pandemic, there are exemptions to the vaccination requirements. An employee can obtain an exemption for either health concerns that would keep them from getting vaccinated or because they have a sincerely held religious belief that prevents them from receiving the vaccine. If an employee asserts an objection based on a disability, medical condition, or sincerely held religious belief, practice or observance, the employer must engage in the interactive process to determine what, if any, accommodation may be offered. Employers should keep detailed records of any such exemptions so that such records can be provided to OSHA in the event of an investigation.
When does the new rule take effect?
The rule is effective from the time it is published in the Code of Federal Regulations, which is scheduled to be tomorrow, November 5. Thus, employers will have until December 5, 2021, to implement the above requirements, except for the testing guidelines for non-vaccinated employees, which goes into effect on January 4, 2022.
What are the penalties for non-compliance?
The rule will be enforced through OSHA inspections of the workplace and through employee complaints filed with OSHA. Employers found in violation of the OSHA mandate will face potential fines of up to $14,000 for non-willful violations, and fines of nearly $137,000 for willful violations.
Conclusion
Vaccine mandates can be a difficult issue for an employer to confront. The most important thing that you can do as an employer is to review your own policies and implement the policies and record-keeping requirements set forth in the ETS. While your policy must fit within the framework of the mandate, the government has allowed for some flexibility in designing and implementing your policies. Although it is anticipated that the ETS will be challenged in federal court, there is no guarantee that such challenges will be successful—as such, it is important for employers to begin ensuring their compliance with the ETS and drafting the appropriate policies now.
If you have any questions about the above or if you would like assistance reviewing your potential responsibilities and policy options under the new OSHA vaccination mandate, please do not hesitate to contact Bryan Niemeyer, Certified Labor and Employment Law Specialist, FGKS Law, at bniemeyer@fgks-law.com or any of the other attorneys at FGKS Law at 937-492-1271.
