Time’s up for employees at large companies who refuse to get vaccinated against COVID-19. That is because the Biden Administration's long-awaited rules regarding its COVID-19 vaccination (and testing) mandate for employers have arrived.
The Occupational Safety and Health Administration (OSHA) released its new emergency temporary standard (ETS) addressing employee vaccination and testing requirements on Nov. 4. The ETS mandates that covered employers, in OSHA's words, "develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work."
Employers Covered By OSHA’s COVID-19 Vaccination Standard
The ETS covers "all employers with a total of 100 or more employees at any time" the ETS is in effect. When calculating whether they are above that 100-employee threshold, companies must include part-time employees, remote workers, and seasonal and temporary workers. Even though such employees are included when determining the size of a company’s workforce for purposes of the ETS, the standard’s vaccination and testing requirements do not apply to employees of covered employers who:
- Do not report to a workplace where other individuals such as coworkers or customers are present;
- Work from home; or
- Work exclusively outdoors
What Employers Must Do and By When
Affecting approximately 84 million American workers, the ETS requires covered employers to comply with all of its requirements other than testing by December 6, 2021. This includes:
- Establishing a company-wide vaccination policy;
- Determining and documenting employees’ vaccination status;
- Providing paid time off to workers to get vaccinated;
- Allowing for paid leave to recover from any side effects; and
- Ensuring that unvaccinated employees wear masks in the workplace
Beginning on January 4, 2022, any unvaccinated employees must undergo weekly COVID-19 testing, though any employee who has received all vaccine doses by that date need not be tested.
If your company employs 100 or more workers, firm or company-wide, here is what you need to do to ensure compliance with the new ETS:
- Determine the vaccination status of every employee, obtain acceptable proof of vaccination from vaccinated employees, and maintain records of each employee's vaccination status.
- Require that employees provide prompt notice if they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove any such employees from the workplace, regardless of vaccination status, and keep them from returning to work until they meet the required criteria.
- Ensure that all unvaccinated workers are tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee not fully vaccinated against COVID-19 wears a face covering when indoors or in a vehicle with another person for work purposes.
The ETS does not change the requirements for reasonable accommodation under the Americans With Disabilities Act for employees who can't get the vaccine for medical reasons or under Title VII of the Civil Rights Act of 1964 for workers who can demonstrate a "sincerely held religious belief" as the basis for objecting to vaccination.
Additional Compliance Resources and Pending Court Challenges
Recognizing the challenges and questions faced by employers charged with implementing vaccination and testing plans under the ETS, OSHA has released a host of detailed materials to help companies understand and comply with their obligations, including a webinar, frequently asked questions, and other compliance materials.
As anticipated, litigation challenging the legality of the administration's vaccine mandate and the ETS has already been filed – and resulted in a temporary stay ordered by the U.S. Court of Appeals for the 5th Circuit. But the administration has indicated that it will vigorously defend the mandates. Despite the challenge in the 5th Circuit, employers should act as if the ETS will survive these legal challenges, as many experts believe that the requirements in the ETS are well within the authority of the executive branch.
For distributors or manufacturers who have questions or concerns about OSHA’s ETS or your company’s COVID-19 vaccination obligations, or to discuss other aspects of employment law, please contact me at 312-840-7004 or [email protected].
Fred Mendelsohn is a partner at Burke, Warren, MacKay & Serritella in Chicago.