The Biden Administration announced Thursday that OSHA (Occupational Safety and Health Administration) published a final rule for the second COVID-19 Emergency Temporary Standard detailing the employee vaccination/testing mandates. All workers at 100+-employee companies covered by OSHA (covering 84 million American employees) must be fully vaccinated by Jan. 4, or undergo weekly testing.
Here’s what businesses should know about enforcing these new vaccine mandates:
Employees get PTO to get vaccinated
According to the OSHA rules, employers must give their employees paid time off to become compliant with vaccination requirements. Also if needed, employees must receive paid sick time off from work to recover from side effects from inoculation side effects that prevent them from working.
These rules will be enforced even in states with anti-vaccine mandate laws
The guidelines specifically state that states that have pushed back on vaccination passports/mandates will also be subject to these rules, like Texas and Florida.
“Both OSHA and CMS are making clear that their new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing,” the White House said in a statement. “The standard is intended to preempt States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a federally-approved state plan.”
There will likely be immediate legal pushback on this requirement from the exact states the mandate is referring to, noted David C. Miller, labor and employment attorney at Miami-based law firm Bryant Miller Olive.
The ETS does not apply to all industries
Only employers with 100+ employees that fall under OSHA guidance need to comply with these standards including manufacturing, retail (hospitality and foodservice included), delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime, and healthcare.
Deadline is Jan. 4 for mandatory vaccination/testing and Dec. 4 for all other requirements
Employees must either have their full schedule of vaccinations completed by Jan. 4 or be in compliance with weekly testing. All other mandates (like face masks for unvaccinated people and employers providing PTO for employees to get vaccinated) must be followed within 30 days, by Dec. 4.
There are guidelines for weekly testing requirements
If employees decline to get vaccinated, they will have to undergo weekly federally approved COVID-19 testing and produce a negative test in order to keep working. Additionally, the employer is required to record and keep track of the results of the results of these tests. Additionally, any unvaccinated employees are required to wear masks while working.
The ETS will outline a “wide variety of approved tests that comply with the standard,” the White House statement clarified. The ETS will not require that employers provide or pay for tests but other local laws or collective bargaining agreements may require them to do so.
“We expect that the mask mandate for unvaccinated employees is likely to be the biggest driver of vaccinations,” said Roslyn Stone, CEO of health technology platform for employers Zero Hour Health. “Bottom line: if employers can implement a good tracking system to maintain compliance and help managers implement this without too much pain, companies will be able to adapt to this new normal and get back to focusing on growing their businesses.”
Employers should have an enforcement plan in place
Bryant Miller Olive's Miller recommended all employers quickly get an enforcement plan in place. First, they have to figure out which employees are vaccinated and which are not and develop a roster of vaccinated and unvaccinated employees.
“Employers also need to find out whether any employees are going to refuse to be vaccinated,” Miller said. “If so, is it for medical or religious reasons that must be accommodated under the law and, if it is, that accommodations process has to be gone through. If there is no exemption, then the employer must get ready to make the employees comply with the masking and testing requirements — if they are not going to just fire them outright.”
Then, they have to find appropriate testing facilities (offsite or onsite) and figure out whether or not they will be paying for testing. Employers must then figure out how they will enforce these guidelines and communicate these standards – including disciplinary actions if employees do not comply.
Employers are likely protected from non-compliant employees
Keep detailed records: If an employer is cited for noncompliance, employee ‘misconduct’ can be a legal defense, Miller said.