[UPDATE: On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.]
On Thursday, November 4, 2021, the Biden administration issued a requirement to U.S. companies to ensure that their employees are fully vaccinated by January 4, 2022 or are regularly tested for COVID-19. Additionally, the Biden administration delayed the deadline for federal contractors to comply with a stricter set of vaccine requirements from December 8, 2021 to January 4, 2022. The Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued guidance on the vaccine mandate requirements.
Read on to learn more about the process to comply with the mandates and to better understand the potential impact to your business.
Background on the COVID-19 Vaccine Mandate
In September 2021, President Biden announced his plan to increase the stagnant vaccination rates by invoking OSHA’s ability to mandate that large employers (defined as employers with 100 or more employees) either require their employees to be vaccinated or be able to produce a negative test result on at least a weekly basis prior to entering the physical workplace. Both employers and employees have awaited clarity on this mandate for logistical and fiscal reasons.
There have been questions as to who is responsible for paying for COVID-19 testing, how this mandate would apply to employees working from home, and what standards employers should apply to reach the 100 employee requirement. Additionally, many employers have implemented their own vaccine policies and have questions on how this mandate will impact those policies already in place. OSHA’s recently issued Emergency Temporary Standard and FAQs shed some light by addressing many of these concerns.
The Basics of OSHA’s Emergency Temporary Standard
The guidance issued by OSHA answers many of the practical questions that employers will have about the vaccination and testing requirements, and individual employers are encouraged to read guidance and familiarize themselves with the FAQs. The Biden administration has formally stated that large companies should ensure that their workers are fully vaccinated or employees are providing testing results by January 4, 2022, in order to be in compliance with the Emergency Temporary Standard. It is estimated that these measures will apply to more than two-thirds of the private sector workforce, resulting in millions of vaccinations by the new year.
In some states and territories, the Emergency Temporary Standard will apply to public sector workers employed by state and local governments, including educators and school staff members. The Emergency Temporary Standard does not require companies to pay for COVID-19 testing or face masks, but other laws, regulations, and agreements may require employers to pay for these items. Under the Emergency Temporary Standard, employees will be considered fully vaccinated if they have received a single dose of the Johnson & Johnson vaccine or two doses of either the Moderna or Pfizer vaccines.
The Emergency Temporary Standard also requires employers to determine the vaccination status of each employee by obtaining acceptable proof of vaccination status from vaccinated employees and maintaining a record of employee vaccination status. In the event that an employee tests positive for COVID-19 or receives a COVID-19 diagnosis, the employee is required to promptly notify their employer If an employee contracts COVID-19, the employer must remove that employee from the workplace and not allow the employee to return until the employee meets certain required criteria, regardless of their vaccination status.
For employees that are not fully vaccinated, employers must ensure that those 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 the physical workplace. Employers also must ensure that each employee that has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
How Businesses are Responding to the Vaccine Mandate
Many businesses were already weighing their options and considering the implications of implementing a vaccine mandate, prior to government directive. In light of the efforts of individual businesses, and the newly announced OSHA rules, many companies will have to work quickly to implement administrative policies and procedures related to the vaccine and weekly testing requirements Employers that do not adopt the policies outlined in the Emergency Temporary Standard could face stiff fines for non-compliance. Serious OSHA penalties typically equal $13,653 per violation and only get steeper from there if the infringements are willful or repeated.
It is worth noting that OSHA’s Emergency Temporary Standard only establishes minimum standards for employers to combat COVID-19. It is both permissible and likely that employers will have additional enhanced measures, beyond what is strictly mandated. OSHA has initiated a 30-day public comment period and is inviting comments on any aspect of the Emergency Temporary Standard.
As Boon has always adapted to the ever-evolving health policy space, we shall continue to do so now. This is a developing issue and we will be monitoring the situation and providing updates as they become available.
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