Mandatory Vaccines for Employers With More than 100 Employees

Shortly after OSHA released the emergency temporary standard requiring employers with 100 or more employees to implement mandatory vaccination policies, the Fifth Circuit Court of Appeals stayed the standard.  Assuming the standard survives legal challenge, (which is no small assumption),  here is what employers should know.

Who Does the Standard Not Cover?

Aside from small employers, federal contractors subject to the federal contractor mandate and healthcare employers covered by the Healthcare ETS are not covered by the November 4, 2021 ETS. Employees of covered employers who work from home, work exclusively outdoors, or who do not work at a location where others are present are also exempt from the standard.

What Must Covered Employers Do?

Pursuant to the ETS, covered employers must:

1. Either (a) confirm all employees are fully vaccinated, or (b) require all unvaccinated employees to produce a negative COVID-19 test result on at least a weekly basis prior to coming to work and ensure that unvaccinated employees wear face coverings; and
2. Provide up to four hours of paid time off for employees to get vaccinated and offer reasonable paid time off for side effects. Any paid leave programs must be included in the required policy.

To determine each employee’s vaccination status, employers must obtain proof of vaccination status from vaccinated employees and maintain records of the employee’s vaccination status. The ETS also requires employers to provide employees with information regarding the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

Notice of Employees Testing Positive for COVID

Furthermore, employers must require employees to inform them when employees test positive for COVID-19. Employers are required to immediately remove any COVID-19 positive employees from the workplace regardless of vaccination status. Employers must not allow such employees to return to work until they receive a negative result on a COVID-19 nucleic acid amplification test, meet the return-to-work criteria as established in the CDC’s “Isolation Guidance,” or receive a recommendation to return to work from a licensed healthcare provider. Employers are not required to provide paid leave during the removal periods.

Employers Must Maintain Testing Records

Employers are expected to maintain all testing records while the ETS is in effect. Testing records should be confidential and maintained separately from employees’ personnel files. While rapid and PCR tests may be used, the ETS only permits the use of over-the-counter self-tests that are observed by employers or authorized telehealth providers. The ETS does not require employers pay for testing.

Finally, employer vaccination policies must include a process for accommodations for employees that cannot get the vaccine due to medical or religious exemptions. However, employees who qualify for such accommodations are still subject to the ETS masking and testing requirements that apply to other unvaccinated employees.

Timelines for Compliance and Penalties

In Federal OSHA states, like Illinois, the ETS took effect on November 5, 2021, and enforcement begins December 5, 2021, for all provisions other than the testing and vaccination compliance date, which starts January 4, 2022. States that promulgate their own OSHA-approved occupations safety and health plans have up to 30 days to adopt the federal ETS or alternative regulations and standards that are at least as effective as the ETS. Employers with locations in multiple states must follow the differing standards and timeframes applicable in each state.

The ETS may remain in place no more than six months. After six months, it will be replaced by a permanent OSHA standard, subject to a formal rulemaking process with a traditional notice-and-comment period. In the meantime, OSHA intends to conduct on-site workplace inspections to make sure companies comply with the rules. Pursuant to the ETS, OSHA may make “willful” and “egregious” determinations when employers are not in compliance with the ETS. OSHA may separately cite employers up to $13,653 for each violation of the ETS where appropriate.

Employer Takeaways

Large employers should begin adopting policies to comply with the standard notwithstanding the legal challenges. The December 5, deadline is right around the corner. Employers who decide to require vaccines should be prepared to address employee religious and medical accommodations and procedures to request paid time off related to vaccinations.

Employers who intend to allow employees to submit weekly COVID-19 tests instead of proof of vaccination should establish record keeping policies for employee tests and policies regarding masks and social distancing. Open questions about how to count employees and how to address difficult accommodation requests should be addressed on a case-by-case basis.