Update, Jan. 13, 2022 / Supreme Court Justices delivered divided rulings on administration’s COVID-19 mandates. One ruling denies COVID Vaccine Mandates for large employers. In other words, the Supreme Court struck down OSHA mandates issued by the Administration. The other ruling upheld mandate requirements for medical facilities that take Medicare or Medicaid payments. —PN
Originally Posted Dec. 14, 2021 / The OSHA Emergency Temporary Standards (ETS) for the federal vaccine mandate were released on November 5. Shortly after the ETS were published, several states and businesses sued to declare that the rule was unconstitutional and beyond OSHA‘s statutory authority. As a result of court rulings, OSHA did halt their implementation of these new regulations. These developments have put employers in a precarious situation. However, the U.S. Chamber is encouraging employers to move ahead with minimum ETS requirements, to prevent employers scrambling at last minute should court rule in favor of OSHA’s ETS. Below is a brief overview of the ETS for employers who have one hundred or more employees:
Create written policy on vaccines for OSHA review – The two choices in this policy per the ETS is to require all employees to be vaccinated or do not required vaccines but require weekly negative test results and mask wearing (while at the workplace) for those who choose not to be vaccinated.
Note: Employers are not required to pay for testing or face coverings. However, there are local resources available for group testing, etc. Please reach out to me for more information.
Obtain acceptable proof of vaccination status from each employee – These records are to be maintained and open for OSHA review.
Provide up to four hours paid time off to workers to get vaccinated and to allow for paid leave to recover from any side effects experienced following each primary vaccination dose – Employers may not require employees to use personal time or sick leave to get vaccinated.
Also included in the ETS are health protocols when an employee tests positive for COVID. However, regardless of vaccine status, the ETS do not require employers to provide paid time off during the required time away from the workplace should an employee test positive.
How to Determine Employee Count?
Employee counts are “firm or company-wide” i.e., company not location. Franchises will be considered separately, BUT cumulatively for an individual company holding several franchise locations – and provides options for compliance. Employers must include all employees across all their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work. Part-time employees and temporary and seasonal workers do count toward the total number of employees if they are employed while the regulations are in effect.
Vaccination status is not considered when counting the numbers of employees. For example, if an employer has two hundred employees, all of whom are vaccinated, that employer would be covered.
Penalties
Employer penalties for non-compliance with OSHA’s rule could include fines based on the number of violations and range up to $13,653 for a single violation. Fines up to $136,532 may be imposed for employers who willfully violate standards. However, depending on the version of the federal budget bill that gets passed, these set fines could be increased exponentially. OSHA officials state they plan to conduct regular inspections.
While this mandate is being challenged in courts, employers should be prepared to comply with the OSHA ETS until the court rulings on the legalities of these mandates are identified. According to OSHA officials, these regulations will be in effect for six months. However, OSHA will continue to monitor trends in COVID-19 cases in making this determination.
We will keep employers updated as ETS move through the courts. Please reach out if you have questions or need more information.
Resources for More Detailed Information:
- For the U.S. Department of Labor FAQ, visit www.osha.gov/coronavirus.
- For the Federal Register of OSHA Regulations, visit www.federalregister.gov.
