OSHA issued an Emergency Temporary Standard (ETS) addressing President Biden’s directive to the Department of Labor mandating vaccinations for all employees. OSHA released details on its employer vaccination and testing mandate for private businesses with 100 or more employees. The new requirement for private businesses went into effect on November 5, 2021. By December 4, 2021, employers must have their vaccination and testing policies written out and communicated to employees. Employees must demonstrate vaccination or submit to weekly testing and mask-wearing by January 4, 2022.
How will employees be counted to determine if the employer meets the 100 employee threshold?
- To determine the number of employees, employers must include all employers across all of their U.S locations regardless of employees’ vaccination status or where they perform their work.
- The count is done on a corporate level, not by an individual location. A single corporate entity with multiple locations will include all employees at all locations in the count.
- Part-time employees count towards the total number of employees. Part-time employees are not counted on a fractional basis.
- Independent contractors do not count towards the total.
- Employees who work from home are counted towards the 100 employee threshold. However, the mandate requirements would only apply to the employees who work in the office.
A mandatory vaccination policy is an employer policy requiring each employee to be fully vaccinated. Such a policy must require vaccination of all employees, other than those employees who fall into one of the three categories:
- those for whom a vaccine is medically contraindicated
- those for whom medical necessity requires a delay in vaccination
- Those are 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.
What information is needed in a written mandatory vaccination policy?
To ensure that employers’ vaccination policies are comprehensive and effective, the policies should address all the requirements of the ETS. This includes:
- requirements for covid-19 vaccination
- applicable exclusions from the written policy
- information on determining an employee’s vaccination status and how this information will be collected
- paid time and sick leave for vaccination purposes
- notification of positive covid-19 tests and removal of covid-19 positive employees from the workplace
- information to be provided to employees and how the employer is making that information available
- disciplinary action for employees who do not abide by the policy.
What is the definition of “fully vaccinated?”
- An employee is not considered “fully vaccinated” untill two weeks after receiving the second dose of the series.
- Employers would need to ensure employees continue to test weekly until two weeks after receiving their second dose.
- Employees who have received just one dose of a two-dose sequence will have to test every seven days.
Testing employees who are not fully vaccinated
Any employee who is not fully vaccinated and reports to a workplace as of January 4, 2022, must submit to a covid019 weekly testing protocol. The employee must take and provide proof of a negative test at least once every seven days.
If an unvaccinated employee frequents the office less often than every seven days, the employee must be tested for COVID-19 within seven days before returning to the workplace and must provide proof of negative test upon return. The following employees are exempted:
- employees who work remotely 100% of the time
- employees who work outdoors exclusively
- employees who work by themselves where no other individuals are present.
There are exceptions to requiring COVID-19 testing. Employees with religious objections and medical objections to the testing requirement may be given a Reasonable Accommodation to address their concerns. Be advised that such accommodations cannot endanger the health and safety of other employees. No exceptions may be made for employees claiming natural immunity.
Who pays for the testing and the face-covering?
Employers do not have to pay for any cost associated with testing. If they want to, they can in whole or in-part but are not required. However, there might be other state laws, regulations, or collective bargaining agreements, or other collectively negotiated agreements whereby the employer might bear some responsibility.
What are the Deadlines for Employer Compliance?
There are two important dates for employers to meet their obligations under the new regulations:
- The ETS has set the date of December 5, 2021, as the deadline for the employer to comply with the following requirements:
- Determine the vaccination status of all employees and keep a record of those statuses to prepare for OSHA reporting requirements;
- Obtain documented proof for all vaccinations in the workforce;
- Implement the vaccination/testing policy approved by OSHA ETS standards, and inform all employees;
- Implement a policy to provide employees with at least 4 hours of paid sick time to receive vaccination doses and further time off to recover from potential side effects;
- Implement a policy to report work-related COVID-19 fatalities within 8 hours of the occurrence and report work-related COVID-19 hospitalizations within 24 hours of occurrence;
- Make employee vaccine/testing records available to employees or employee representatives upon request.
- The ETS has set the date of January 4, 2022, for employers to comply with the following requirements:
- Implement a testing program (if the employer decides to give employees the option of vaccinating or testing).
Penalties for non-compliance
OSHA has the authority to cite and financially penalize employers for non-compliance with all or specific aspects of this policy or cite employers for violations in particular instances.
OSHA will determine whether an employer has intentionally disregarded their responsibilities or displayed a blatant disregard to employee safety or health, both of which will result in stricter penalties. The penalty for an OSHA violation is $13,653 per violation.
There is a far more severe penalty for willful or repeated violations, $136,532 per violation.
Learn more here: https://www.osha.gov/coronavirus/ets2
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