Private employers with 100 or more employees are required to implement a new vaccine mandate. This morning, the United States Occupational Safety and Health Administration issued its Emergency Temporary Standard requiring those employers to adopt policies addressing COVID-19 testing, masking and vaccines. While the Standard itself is only 17 pages long, OSHA devoted an additional 473 pages of Preamble to explaining it. Here is a link to the Standard and its Preamble: OSHA Vaccine Mandate. In addition to that daunting document, OSHA created a “Frequently Asked Questions” web page that can be found here: OSHA Vaccine FAQs. OSHA also simultaneously released a webinar with an overview of the mandate, here: OSHA Vaccine Webinar
Here are my big takeaways:
1. Who’s NOT covered?
OSHA’s rule does not apply to federal contractors who are already subject the vaccine mandate originating with President Biden’s Executive Order 14042. I’ve written extensively about obligations under that Order: Federal Contractor Vaccine Mandate
Healthcare workers are not covered by the new OSHA rule if they are already subject to a prior ETS that was released for healthcare workers in June. Details on the healthcare ETS can be found here: Healthcare ETS
Three types of employees are not covered: (1) Employees who do not report to a workplace where other individuals such as co-workers or customers are present; (2) employees who are working at home; and, (3) employees who work exclusively outdoors.
2. How do I determine if I have 100 or more employees?
Employers must count all employees across all United States locations.
Part-time employees DO count. Independent contractors do not. Here’s an old blog post that I wrote about the dangers of calling employees independent contractors: How Independent are Your Independent Contractors?
“[T]wo or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company ….”
Franchisors and franchisee will usually be separate entities with separate employees. Employees referred by a staffing agency will probably be counted as employees of the staffing agency rather than the client-company.
Fluctuations in employee count are biased in favor of vaccination. The effective date of the ETS is tomorrow, November 5, 2021. If you don’t have 100 employees tomorrow, you don’t have to comply with the mandate. But, once you hit 100 at a later date, you have to comply. And, if you have 100 employees tomorrow, you must comply with the mandate throughout the duration of the ETS — even if your employee count dips below 100.
To determine overall coverage, you MUST count all employees — even if they fall within the three categories of “solitary” employees who aren’t covered. In other words, if you have 105 employees, and 10 of them work exclusively outdoors, you still have to comply with the mandate for the 95 employees who do not work exclusively outdoors.
3. Covered employers must adopt a mandatory vaccination policy.
The ETS requires that covered employees adopt a “mandatory vaccination policy.” Fortunately, OSHA has done most of the heavy-lifting by issuing sample policy with a vaccine mandate: Sample Vaccination Policy
4. Employers CAN avoid the vaccine mandate by mandating testing and face coverings.
The ETS creates a “limited exception” to the vaccination policy. Employers can avoid the mandate by establishing, implementing and enforcing a written policy allowing any employee not subject to mandatory policy to choose either to: (1) be fully vaccinated against COVID-19; or, (2) provide proof of weekly testing for COVID-19 AND wear a face covering. Such employees must wear the face covering while in the workplace or in a car with a co-worker. Employers are not required to pay the costs for such employees’ weekly testing. OSHA also provided a sample policy for those employers that want to permit employee choice: Employee Choice Vaccination Policy
5. Paid Time Off for getting the vaccine and its adverse effects.
Employees must provide employees with up to four (4) hours of Paid Time Off for each dose of the vaccine. If an employee takes more than four hours, the additional time is protected, but unpaid. In other words, you can’t fire an employee for taking more than four hours to get a dose of the vaccine.
This is a new and mandatory benefit. Employers cannot require employees to use pre-accrued PTO to pay for getting the vaccine dose itself.
If an employee misses work because of adverse effects from the vaccine, they must receives some paid leave. An employer can require use of accrued PTO to deal with adverse effects. But, if an employer differentiates between vacation and sick leave, the employer cannot require an employee to use accrued vacation for adverse effects. Employees cannot be forced “into the negative” if they do not have accrued PTO/sick leave. The ETS allows employers to set a “reasonable” cap on paid leave to deal with adverse effects. Generally, OSHA presumes that two days is reasonable.
This is not a retroactive benefit. So, employees who are already vaccinated do not get additional PTO.
6. Record keeping requirements.
The ETS’s record-keeping requirements are extensive. And, all information about employee vaccination status must be kept confidential. The standard requires employers to
determine the vaccination status of each employee, and also to maintain records of each employee’s vaccination status, preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and maintain a roster of each employee’s vaccination status.
7. What’s the deadline for compliance?
The compliance date is “30 days from the effective date.” In other words, employers must have their policies in place by December 5, 2021.
Employers are required to mandate testing of unvaccinated employees within 60 days of the effective date — or January 4, 2022. Employees who complete their vaccine series by that date do not have to be tested, even if they have not completed the standard two-week waiting period.
8. Fraud issues.
OSHA is not requiring employers to monitor for or detect fraud. But, the ETS preamble makes sure to remind employers and employees that they face 5 years imprisonment if they engage in fraud. Moreover, “[i]f an employer knows that proof submitted by an employee is fraudulent, and even with this knowledge, accepts and maintains the fraudulent proof as a record of compliance with the ETC, it may be subject to the penalties ….”
9. What are the fines if I don’t comply?
The answer: at least $14,000.00. That’s the amount of fines imposed by OSHA for serious safety violations. Last night, the White House arranged a telephone conference between the press and “Senior Administration Officials” but directed the press not to release details until today. A transcript of that call can be found here: Background Press Call on Vaccinations.
When asked about fines, one official said: “So $14,000 per item that would be cited. So if there were multiple items out of the standard that we cited, there would be, you know, multiple penalties that could be issued along with that.”
Some accomplished lawyers think the fine could be $14,000 per unvaccinated employee.
10. Conclusion
Stay tuned. The Centers for Medicare and Medicaid Services also released a vaccine mandate affecting Medicare and Medicaid health workers today. It can be found here: CMS Vaccine Mandate I hope to have a summary of that rule soon.