HR One eNews

OSHA Announces Details of the Vaccine Mandate for Large Employers New rule requires large employers to take steps to encourage vaccination or establish alternative options

*There is an injunction currently in effect pausing implementation of this new rule. HR One will provide updates as the situation develops.*

The Occupational Safety and Health Administration (OSHA) has issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The ETS establishes requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace. The rule covers all employers with a total of 100 or more employees (with a few exceptions described below). Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.

Which employers are covered by the ETS?

Private employers with 100 or more employees firm-or-corporate-wide. In states with OSHA-approved State Plans, state and local-government employers, as well as private employers, with 100 or more employees will be covered by state occupational safety and health requirements.

Which workplaces are not covered by the ETS?

Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors; and settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (§ 1910.502).

Workplaces of employers who have fewer than 100 employees in total, and public employers in states without State Plans are not covered either.

If an employer is covered by the ETS, does that mean all of its employees must follow the provisions of this ETS?

No. The requirements of the ETS do not apply to:

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

What does the ETS require employers to do?

• Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
• Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
• Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each vaccination dose
• Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing.
• Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
• Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return-to-work criteria are met.
• Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
• 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 established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (for example by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
• Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
• Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

Some of my employees are eligible for a booster shot or additional doses of the vaccination.  Am I required to collect or maintain information for these additional doses?

Employers are required to determine the vaccination status of each employee, including whether the employee is fully vaccinated. Booster shots and additional doses are not included in the definition of fully vaccinated under the ETS. Therefore, the employer is not required to obtain vaccination-related information beyond what is considered necessary to demonstrate that the employee is fully vaccinated as defined by the ETS.

When does it take effect?

Employers must comply with most provisions by 30 days after the date of publication in the Federal Register.  Employers must comply with the testing requirement by 60 days after the date of publication in the Federal Register, which will be January 4, 2022

THIS IS A DEVELOPING SITUATION. THERE HAVE BEEN LEGAL CHALLENGES FILED AGAINST THE MANDATE WHICH WILL NEED TO BE RESOLVED BY THE COURTS.

HR ONE WILL CONTINUE TO MONITOR DEVELOPMENTS AND SHARE UPDATES WITH CLIENTS.

If your organization would like assistance creating a vaccine policy contact your Consultant or email info@peopletopayroll.com