November 16, 2021

Navigating the COVID-19 Vaccine Mandate for Employers With 100+ Employees

On September 9, 2021, President Joe Biden announced his administration’s “Path Out of the Pandemic.” Part of that plan would require that employers with 100 or more employees ensure their employees are fully vaccinated or, alternatively, that they receive weekly COVID-19 tests and wear face coverings at work.  The Occupational Safety and Health Administration (“OSHA”) is the federal agency that was responsible for preparing a rule to implement the Administration’s plan.  On November 4, 2021, OSHA announced its Emergency Temporary Standard (“ETS”), which was scheduled to take effect the following day.

As of November 6, 2021, the ETS is On Hold

On November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued on order staying (blocking) the ETS.  The Fifth Circuit reaffirmed that stay on November 12, 2021, ordering that OSHA take no steps to implement or enforce the ETS until further court order.  As a result, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future litigation developments.

In addition to the lawsuit that was the subject of the Fifth Circuit’s stay, several other lawsuits regarding the ETS have been filed throughout the country.  Those suits will be consolidated within one circuit.  Whether, and to what extent, the ETS ultimately takes effect will be determined by the court system. 11/17/21 UPDATE: The United States Court of Appeals for the Sixth Circuit “won the lottery” yesterday and all of the ETS-related cases will be consolidated and heard by the Sixth Circuit.

While the ETS currently is on hold, covered employers would be wise to take steps now to prepare for the possibility that the ETS will take effect.

What does the ETS provide?

Which Private-Sector Employers are Covered by the ETS: The ETS applies to all private-sector employers with 100 or more employees.  This is calculated company-wide, and includes part-time employees.  States such as Minnesota that have their own OSHA-approved state plans will be covered by state OSHA requirements which must be at least as stringent as the ETS.  Certain federal contractors and subcontractors, healthcare services, and other businesses may not be covered by the ETS but may be covered by a different mandate or ETS related to COVID-19.

Do all employees who work for a covered employer have to comply with the ETS?  Generally, yes, with the following exceptions:

  • Employees who do not report to a workplace where other individuals are present;
  • Employees who work from home; or
  • Employees who work exclusively outdoors.

What do Covered Employers Need to do:

  1. Develop, implement, and enforce a mandatory COVID-19 vaccination policy.
    • Instead of a mandatory vaccination policy, employers may instead establish, implement, and enforce a policy that allows employees to choose to get vaccinated or, alternatively, to undergo weekly COVID-19 testing and to wear a face covering at work.  For employees who are not fully vaccinated, employers must:
      • Ensure that each such employee who is in the workplace at least once per week gets tested for COVID-19 at least weekly;
      • Ensure each such employee who is away from the workplace for a week or more is tested for COVID-19 within 7 days before returning to work; and
      • Ensure that each such employee wears a face covering when indoors or when occupying a vehicle with another person for work purposes, subject to limited exceptions.
    • Employees may still request a reasonable accommodation from their employer due to their medical condition or religious beliefs.
  2. Determine the vaccination status of every employee, including:
    • Obtain proof of vaccination from vaccinated employees;
    • Maintain records of each employee’s vaccination status; and
    • Maintain a roster of each employee’s vaccination status.
  3. Provide employees with reasonable time to receive each primary vaccination dose, including:
    • Provide up to four hours of paid time off to receive each dose;
    • Provide reasonable time and paid sick leave to recover from the side effects from each primary dose.
  4. Require all employees to promptly provide notice if they receive a positive COVID-19 test or are otherwise diagnosed with COVID-19.  In addition, employers must:
    • Immediately remove any employee who receives a positive test or diagnosis from the workplace; and
    • Keep any such employee out of the workplace until return to work criteria are met.
  5. Provide each employee with information, in a language and at a literacy level the employee understands:
    • About the requirements of the ETS and workplace policies and procedures to implement the ETS;
    • About protections against retaliation and discrimination; and
    • About laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  6. Do not prevent any employee, regardless of vaccination status, from voluntarily wearing a face covering, unless it creates a serious workplace hazard.
  7. Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them.
  8. Report work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.
  9. Make an employee’s COVID-19 vaccine documentation and test results available to that employee and to anyone having written authorized consent from that employee.
  10. Make available to an employee, or to an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

When Does the ETS Take Effect? If the ETS takes effect as scheduled, employers must comply with most provisions of the ETS by December 6, 2021.  Employers must comply with the testing and vaccination requirements by January 4, 2022.  As noted above, as of November 6, 2021, the ETS is on hold and, thus, these dates are subject to legal developments in the court system.

What are the Penalties for Employers Who do Not Comply?  The penalties for non-compliance are steep, including almost $14,000 per violation as well as additional penalties for willful or egregious failures to comply.

Can States, Counties, or Cities Ban or Limit the Scope of the ETS?  No.  The ETS is intended to preempt States and political subdivisions of States from adopting and enforcing workplace requirements relating to vaccination, wearing face coverings, and testing for COVID-19.  For example, OSHA intends to preempt any State or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.

Will the ETS Become a Final Standard?  The ETS will be in effect for six months, but OSHA intends for it to act as a proposal for a final standard.  OSHA is seeking comments on all aspects of the ETS.  The comment period remains open through December 6, 2021.

Can an Employer Have a Mandatory Vaccine Policy That is More Restrictive Than the ETS?  Generally, yes.  In doing so, be sure to comply with all the requirements of the ETS and any State or local laws that may restrict the ability to be more restrictive than the ETS.