Breaking News on Federal Vaccine Mandate

RELATED 1/13/22 UPDATE: Breaking News: Federal Vaccine Mandate Blocked

Today the Occupational Safety and Health Administration (OSHA) issued its much-anticipated Vaccine and Testing Emergency Temporary Standard (ETS) to outline the requirements of the federal vaccine mandate announced by President Biden in September. The ETS is lengthy and includes important details we are working to unpack. To get you started, we want to provide some of the key compliance facts employers need to know. We anticipate continuing updates to this article as guidance evolves and will be hosting our third installment of The COVID-19 Vaccine: How to Prioritize Your People to dig even deeper. 

What does the ETS require?

The ETS provides employers with 100 or more employees two options for compliance: 

  1. implement and enforce a mandatory COVID-19 vaccination policy for all employees, OR 
  2. implement and enforce a policy that requires unvaccinated employees to undergo weekly COVID-19 testing and wear a face covering in the workplace. 

In either situation, employers must collect and maintain records of employees’ vaccination status, as well as records of employees’ weekly test results if that option is available.   

It is effective immediately upon publication in the Federal Register, which is anticipated on November 5. OSHA has published an FAQ, fact sheets, addressing the key provisions of the ETS.  

Which employers need to comply?

The ETS applies broadly to private employers with 100 or employees at any time the ETS is in effect. For this purpose, full-time, part-time, seasonal, and temporary employees are all counted as 1 employee regardless of hours worked. Employees in any location (different offices, remote work, or hybrid arrangements) are counted together in determining whether the 100-employee threshold is reached. An employer with fewer than 100 employees on the effective date of the ETS who later reaches 100 employees is immediately subject to the mandate’s requirements. In contrast, falling under the 100-employee threshold at a later time does not relieve an employer from compliance until the end of the ETS period.  

There are certain employers who are not covered by the ETS. Those include federal contractors and healthcare workers, both of which are subject to separate federal vaccine requirements. State and local governmental employers are exempt unless they operate a “State Plan.” States that operate State Plans monitored by OSHA are required to adopt standards at least as stringent as the ETS within 30 days of the effective date. Notably, Indiana operates a State Plan, which means that Indiana state and municipal employees will be subject to the same rules as private employers.

Are any employees or groups of employees exempt?

The ETS exempts certain employees from the vaccine-or-testing requirement. These include: 

  • Remote employees who do not report to a workplace where other individuals (such as coworkers or customers) are present 
  • Employees who exclusively work outside  

These employees must be counted in determining whether an employer meets the 100-employee threshold but are not required to be vaccinated or tested. 

What are the initial compliance steps and implementation dates?

There are two key compliance dates included in the ETS: 

Effective December 5, 2021: 

  • Unvaccinated employees must wear a face mask while in the workplace 
  • Employers must provide up to 4 hours of paid time off, per dose, for employees to get vaccinated 
  • Employers must provide up to two days, per dose, of paid sick leave to recover from side effects of vaccination. Paid sick leave can count against accrued sick time or accrued PTO.  

Effective January 4, 2022: 

  • Employees should be fully vaccinated; those who are partially vaccinated or obtain initial vaccination after this date will undergo testing for a period of time that ends two weeks following their last vaccination date 
  • Unvaccinated employees who regularly come to the workplace must begin weekly testing.  
  • Employees who work offsite are not required to test unless coming to the office, in which case they must provide proof of vaccination or a negative test within 7 days.  

It’s important to note that employers who choose to allow weekly testing as an alternative to vaccination do not have to cover the cost of the tests. Employers can require employees to get tested on their own, and do not have to provide onsite testing. Employees who refuse to undergo testing can be removed from the workplace and employers are not required to pay them for time missed 

It’s also important to note that employers remain subject to federal civil rights laws and must continue to consider medical or religious accommodation requests. Employees who qualify for a vaccine exemption are still subject to the weekly testing requirement.   

What actions must employers take now?

In the weeks leading up to the December 4 compliance date, employers will need to take the following actions: 

  • Develop and implement a mandatory vaccination policy, or in the alternative, a policy allowing employees to provide proof of weekly testing and requiring a mask in the workplace 
  • Develop a process for collecting and maintaining proof of vaccination status or weekly testing 
  • Review PTO policies to ensure additional paid time off is available for employees getting vaccinated, and allowing a minimum of 2 days off (which can count against PTO or sick time) to recover from vaccine side effects 
  • Determine how weekly testing will be handled and tracked, and who will cover the cost 
  • Consider implementing a vaccine and testing tracking system to ensure proper documentation is maintained to demonstrate compliance. Many HRIS vendors have introduced tracking modules for this purpose, and stand alone vendors have entered the market  

Communication is Key. As always, communication with employees is critical to successful implementation. Employers should create a strategy for communicating with employees, stressing the overall message of workplace and worker health and safety.  Communications should include a reminder of these deadlines and steps employees have to take to meet them.  

Your FirstPerson team is developing a compliance toolkit that will include sample employer policies, information on HRIS and stand-alone vendors for tracking, and options for testing. Look for that toolkit as part of our webinar The COVID-19 Vaccine: How to Prioritize Your People – Part 3 on November 11, 2021 at 12 p.m.  

Please contact me, Kelly Eckman, or a member of your FirstPerson team with any questions.   

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