New Federal Vaccine Mandate Immediately Affects Employers with 100+ Employees

The Occupational Health and Safety Administration released its new vaccine mandate as an Emergency Temporary Standard today for employers who have at least 100 employees (“large employers”). The ETS is effective on November 5, 2021, and large employers only have 60 days to fully implement their vaccination plan, so time is of the essence.

Each large employer can decide if that company is going to (1) mandate that every employee gets vaccinated (while allowing limited religious and medical exemptions) or, instead, (2) mandate that its employees have a choice between vaccination and weekly testing. However, either way, large employers have to start requiring all unvaccinated employees to be masked at all times indoors as of December 5, 2021, except when they are alone in their own closed office. The new rules are summarized here.

Here are the highlights of the Emergency Temporary Standard mandate:

Does it apply to your company?

Do you have 100 names on your payroll (full-time, part-time, temporary or seasonal workers who perform work for your company at any point on or after November 5, 2021)? If so, this ETS applies to your company. “In determining the number of employees, employers must include all employees across all of their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work,” according to the FAQs released by OSHA today.

The count of employees is corporate-wide, not by individual location. Even those who are working from home are counted (although some parts of the mandate do not apply to those workers who are exclusively remote workers). Similarly, those who work exclusively outside are counted when determining if you have 100 workers, but the mandate does not apply in the same way to outside workers.

Independent contractors are not included when you are counting to 100. Neither are temporary workers that you use who are actually employed by a staffing company.

Federal contractors were already subject to a separate vaccine mandate under Executive Order 14042. Healthcare employers who receive Medicare or Medicaid funds have their own stricter vaccination ETS also released today, which does not allow for testing as an alternative to vaccination. To make it easier for all employers to comply with the differing requirements, the deadline for the federal contractor vaccination requirement has been aligned with those for the healthcare entity rule and the large employer rule. Employees falling under the any of these rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. 

But what about Gov. Abbott’s Executive Order Saying No Vaccine Mandates in Texas?

I won’t get into all of the politics of this, but this OSHA standard preempts Gov. Abbott’s order (which he couldn’t persuade the Texas Legislature to turn into law in the last special session). The U.S. Supreme Court has already backed vaccine mandates in at least three separate instances this year. I would not count on the Supremes ruling that Gov. Abbott’s executive order will prevent OSHA from enforcing this new Emergency Temporary Standard. And you probably don’t want the exorbitant legal expense for your company to be the test case for this political pissing match between the state and the feds anyway.

What are my next steps?

  1. A written policy is mandatory. Decide if your large employer company will put in place a (1) mandatory vaccination policy, or (2) an either/or policy that allows either vaccination or weekly testing. Whichever you choose, don’t reinvent the wheel. OSHA has provided sample written policies for each. Use their policy form to make sure you are in compliance. Some factors to consider:
    1. Vaccinations are completely free, while weekly testing and documentation is going to get very expensive either for your company or the unvaccinated employees, if you decide that unvaccinated employees have to pick up the cost of weekly testing.
    2. Unvaccinated employees who work inside in your company or travel in a vehicle with another employee have to wear a mask every day, all day beginning December 4.
    3. Employees remain “unvaccinated” for testing and masking purposes under this ETS until 2 weeks after their final dose (2nd dose of Moderna or Pfizer or only dose of Johnson & Johnson. Boosters are irrelevant to this ETS). But to be in compliance on January 4, 2022, the employees only have to have had their final shot by that date to avoid the testing regimen.
    4. Talk to your employees before you make the decision on which policy to implement. Get a feel for how many are already vaccinated. Some may threaten that they will quit if you require vaccination, but an unbiased Kaiser Foundation survey released last week put that number at under 5%.  Many employers have experienced far less job loss than that. Houston Methodist Hospital, one of the first employers in Texas to require vaccinations and to successfully defend their policy in federal court, only lost 153 of 25,000 employees and 7500 contracted physicians (.0005% of its workforce).
    5. Don’t make your written mandatory vaccination policy your only communication with your employees. Come up with a communication plan for helping employees understand the vaccines, help them access the vaccines, help them understand their options and give them a forum to reasonably ask their questions. Houston Methodist Hospital’s HR department came up with a good explanation to their employees of their thinking when mandating vaccinations that is worth a read.
    6. Besides your written policy, you must also provide your employees with the CDC document “Key Things to Know About Covid-19 Vaccines”; information about their protection from retaliation and discrimination; and a poster about laws that provide for criminal penalties for knowingly supplying false statements or documentation. FAQ 9.
  2. With either policy that you decide to adopt, you must do significant daily and cumulative recordkeeping.
    1. You must keep a running roster of the vaccination status of each employee. “The roster must list all employees and clearly indicate for each one whether they are fully vaccinated, partially (not fully) vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.” FAQ 4.C. This roster is considered confidential medical information and must be stored in a protected way.
    2. Vaccinated employees will need to bring in proof of vaccination and you will need to keep a copy of that. “The ETS does not offer any exemptions to vaccination requirements based on ‘natural immunity’ or the presence of antibodies from a previous infection. ‘Fully vaccinated’ means a person’s status 2 weeks after completing primary vaccination with a COVID-19 vaccine.” FAQ 3.I. These vaccination cards are considered confidential medical information and must be stored in a protected way.
    3. You must come up with a way to permanently document and securely maintain each weekly test result from each unvaccinated employee. FAQ 6.F. The affected employee must be allowed to access their own testing history records.
    4. With only 4 hours’ notice, you will have to provide to OSHA your written vaccination policy and the aggregate number of vaccinated versus total employees in your company from your roster (cumulative information, not the vaccination status of each individual employee). This allows OSHA to quickly determine which employers will be subject to more in-depth audits. FAQ 11.B.
    5. Prevent a whistleblower issue by keeping your data up to date. With one day’s notice, any employee may also request this aggregate information. “OSHA believes that access to this information will allow employees and employee representatives to calculate a percentage of fully vaccinated employees at a workplace, evaluate the efficacy of the employer’s vaccination policy, raise any concerns identified to OSHA, and actively participate in the employer’s vaccination efforts. Without the provision of this information to employees and their representatives, the only potential check on whether the employer is complying with the requirements of the ETS would be OSHA inspections. The agency believes that making this information available to employee representatives will help ensure compliance with the requirements of the ETS and thereby protect workers.” FAQ 11.C.
  3. With either policy, you will have to allow employees to claim an exemption based on sincerely-held religious beliefs or medical condition. An employment lawyer can provide you with forms to give to your employees if they are going to seek one of those exemptions.
    1. The exemption is only from the vaccination. The rules about masking and weekly testing still apply to these exempt employees and will last as long as the ETS is in effect (at least six months).
    2. The religious belief must be sincerely-held and based on spiritual concerns, not political or social beliefs or fear of the vaccines. The employee must provide a credible explanation of their religious beliefs to claim this exemption.
    3. The medical condition exemption requires the employee to get a physician to verify in writing the exact medical condition that requires the employees to be exempt, and to certify whether the exemption is temporary or permanent.
    4. Employees who claim an exemption are not protected from job separation if their failure to be vaccinated creates an undue burden for the employer.
  4. If you are going to allow weekly testing as a substitute for mandatory vaccination, you need to research and decide on your testing regimen.
    1. You can require either rapid antigen testing (results in about 15 minutes) or the more accurate PCR testing (results in approximately two days). You can have a lab administer the test or the employer can use over-the-counter kits and administer the test to its employees. However, to be a valid, recordable test under the ETS, an employee cannot self-administer and self-read the test, so just having employees do a test at home and report the results to you is not adequate. The employer must observe the test unless a certified testing facility is doing it. FAQs 6.J. and 6.K.
    2. OSHA is leaving the decision about who pays for the test up to the employer. FAQ 6.G. Some employers are requiring employees who refuse to get vaccinated to pay for their own weekly testing as an incentive to go get the free vaccination. There are some minimum wage concerns to requiring employees to pay this cost, but that is not a frequent problem right now when no employer can keep employees on staff by only paying minimum wage.
    3. If an employee is unvaccinated, they are barred from the workplace premises until they can provide a negative test result. FAQ 6.C.
    4. Obviously, any employee who tests positive is also barred from the workplace until they meet the CDC criteria for returning to work. The good news is that you don’t have to bar employees who are directly exposed, since unvaccinated employees will be constantly wearing masks and vaccinated employees are less likely to get sick. For the same reasons, you don’t have to do any contact tracing. FAQ 7.A – 7.G.
  5. You need a way to tell unvaccinated employees from vaccinated employees. One of my clients is issuing a unique lapel pin for each vaccinated employee once they provide proof that they are fully vaccinated. Pinned employees wear it each day instead of a mask and don’t have to worry about the testing regimen.  
  6. You have to inform your employees that any false statements that they make about vaccination status, reasons for exemptions, testing results or other material compliance information relating to this ETS can result in civil and criminal penalties. There is a poster that is included in the new OSHA materials for employers to use to notify employees of the possible monetary and imprisonment penalties for false statements.  Of course, their false statements should also result in termination by you of their employment.
  7. The ETS requires employers to provide paid time off for getting the vaccinations and for recovering from the side effects.
    1. The ETS requires all large employers to provide four hours of additional paid time off for employees to receive the vaccine during working hours. FAQ  5.A. The goal is to use this additional PTO as an incentive for the employees to get vaccinated. However, if the employee chooses to get vaccinated on a weekend or other days off, the employer doesn’t have to pay for this employee’s time.
    2. On the flip side, employees can be required to use their already available PTO for any time off needed to recover from side effects of a vaccination, but if they have no PTO available under your policies, you will need to provide them with extra paid time off. FAQ 5.B. OSHA assumes that a maximum of two days is sufficient for recovery from side effects from each shot, unless the employee has a very severe allergic reaction. FAQ 5.D.
    3. You don’t have to provide any additional PTO for work missed when an employee tests positive for COVID-19.

There is a lot of information to digest about this mandatory vaccination policy, so don’t try to do it alone. If your company has 100 employees or more, get with your employment attorney immediately to start working through the unique problems that your workplace may encounter with quickly setting up and administering compliance with this new OSHA ETS.

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