On Thursday, the Biden Administration unveiled the long-awaited OSHA rules requiring large employers to mandate their employees receive the COVID-19 vaccination or submit to weekly tests. Here are five key takeaways for employers from the OSHA emergency temporary standard (ETS). For a more thorough breakdown of the ETS’s requirements, click here.
The new rules apply to employers with 100 or more employees. OSHA has chosen to make the new COVID regulations applicable only to employers with 100 employees or more because the agency believes these employers are most capable of implementing such policies. When it comes to determining whether the new regulations apply to your company or entity, most employees are going to count toward this 100-employee threshold. Both full and part-time employees count and companies must count employees company-wide. To help determine if you employ 100 employees, click here.
Unvaccinated employees must wear face coverings and submit to weekly tests. An employee is not considered fully vaccinated until two weeks after he/she completes a vaccine course. While OSHA encourages employers to require employees to get vaccinated, full stop, the new rules do allow employees who are not fully vaccinated to continue working in the workplace. However, those employees must still do two things: (1) they must wear a face covering that covers their nose and mouth while in the workplace (with some exceptions such as when they are alone in a fully enclosed room); and (2) they must submit a negative COVID-19 test at least once a week for every week they are in the workplace at least once. Employers are not required to pay for tests or face coverings for those employees who choose not to be vaccinated.
Employers must foot the bill for their employees getting vaccinated. These regulations do require employers to grant employees paid time off for the total time it takes for them to obtain the vaccine. This includes the time it takes to register for the vaccine, to travel to and from a vaccine site, and the time during which they are at the vaccine site (capped at a max of four hours). Additionally, the ETS requires employers to provide reasonable paid sick leave to employees who are recovering from side effects of the vaccine. Employers must do this even if the employee has exhausted all other paid leave.
Vaccine status can be verified in a variety of ways. The new OSHA regulations allow for employees to verify that they have been vaccinated in several ways, including a copy of their COVID-19 vaccination card or any official documentation that contains the following information: which vaccine the employee received; when and where it was administered; and the name of the health care professional or clinic responsible for administering the vaccine. Notably, an employee may also verify his/her vaccination status with a signed attestation including the basic information about vaccination, a statement that he/she is unable to produce proof of vaccination, and the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.” While this loophole may invite fraud, the ETS does not place the responsibility of monitoring or detecting fraud on the employers. However, employers may not invite or facilitate fraud.
Employers must adopt written policies implementing these ETS requirements, quickly. The ETS requires employers to adopt written policies consistent with OSHA’s ETS rules. Other than the vaccine mandate itself, the bulk of the ETS rules go into effect on December 5, 2021. Most notably, this means that employers must require unvaccinated employees to wear face masks by this date. This, of course, means that employers who have not yet determined the vaccination status of their employees should do so quickly. Additionally, employers must compile their employees’ vaccine statuses into a “vaccine status roster” and update the roster as more employees become vaccinated. The deadline for implementing the “vaccine or weekly test” policy is January 4, 2022. Covered employers who fail to implement these policies may face significant fines.
IMPORTANT: The Tennessee Legislature recently passed Senate Bill 9014, which contradicts a lot of the ETS as described above. This legal conflict certainly creates a confusing and troublesome dilemma for many employers, especially public employers, here in the State of Tennessee. Lewis Thomason fully expects that these issues between the ETS and Tennessee Senate Bill 9014 will be litigated and litigated soon. We will keep our clients updated as courts weigh into this developing conflict.