UPDATE: A federal appeals court has issued an emergency stay of the implementation of COVID vaccination and testing regulations, temporarily halting the implementation of the program unveiled last week.
On Nov. 4, 2021, the Biden Administration released its official guidance on its COVID-19 vaccine and testing mandate for private employers with 100 or more employees. The temporary emergency standard (ETS) falls under Occupational Safety and Health Administration (OSHA).
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Who Does This Regulation Apply To?
The COVID Vaccine ETS applies to employers with 100 or more employees. The 100-employee threshold was established because OSHA feels these employers have the administrative capacity to administer this program.
What Is Required of Employers?
According to OSHA, employers must:
- Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
- Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
- Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
- Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
- Provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
What is Required of Employees?
All employees must promptly inform the employer of any positive COVID test or diagnosis and not return to the workplace until cleared to return.
Vaccinated employees must:
- Provide proof of vaccination.
Unvaccinated employees must:
- Be tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
- Wear a mask or face covering that consists of at least two layers of material that is either tightly woven or non-woven that does not have visible holes or openings.
What If My Employees Claim A Religious Vaccine Exemption?
No matter an employee’s reason for being unvaccinated, the employee must adhere to the above obligations.
What Are The Penalties For Non-Compliance?
OSHA will access companies a penalty of $13,653 per violation, with “significant” violations costing employers $136,532.
How Will The Rule Be Enforced?
Complaints will likely be employee-driven, with OSHA inspectors responding to employee complaints.
Are there exemptions to the face-covering/mask mandate for unvaccinated employees?
Masks/race coverings for unvaccinated employees are required except:
- When an employee is alone in a room with floor to ceiling walls and a closed door.
- For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
- When an employee is wearing a respirator or facemask.
- Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).
When Does The Rule Take Effect?
The ETS has two important dates:
- 30 days after publication (Dec. 5, 2021): All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
- 60 days after publication (Jan. 4, 2022): Testing for employees who have not received all doses required for a primary vaccination
What If I have more than 100 Employees, But Not All Are Full Time?
If you have 100 or more employees, even if some are part-time employees, your company falls under the ETS.
Do independent contractors count toward the 100-employee threshold?
No. Independent contractors are not considered an employee under the ETS.
Who pays for the COVID tests for unvaccinated employees?
Unvaccinated employees are responsible for paying for COVID tests unless a union contract or state/local law requires the employer to pay for the tests.
Where Can I Learn More?
Full text of the rule is available at https://public-inspection.federalregister.gov/2021-23643.pdf. A list of FAQs is available at https://www.osha.gov/coronavirus/ets2/faqs.
