Six Points for Employers about Vaccine Mandates

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The Biden administration recently announced private employers can expect new workplace vaccination standards in the form of emergency rules from the Occupational Safety and Health Administration. While some businesses have already implemented COVID-19 vaccination mandates, the new OSHA rule would create an Emergency Temporary Standard, or ETS, for all enterprises with more than 100 employees.

The U.S. Department of Labor reports the ETS is expected in the coming weeks. It would likely require all employees in covered businesses to ensure their employees are vaccinated or, alternatively, require all unvaccinated individuals to submit to mandatory weekly testing and provide negative results before a work shift. All federal contractors and most health care providers accepting Medicare or Medicaid funding will also be required to implement vaccine mandates.

The temporary aspect of the ETS indicates it will be replaced by a permanent OSHA standard or allowed to expire. The new rule will go into effect immediately upon publication in the 29 states where federal OSHA maintains jurisdiction, including Oklahoma, while the other 21 states will have the option to implement it within 15 to 30 days or publish their own rules. Legal challenges are expected in Oklahoma and Texas questioning if there is a “grave danger” to the workers of covered employers if the ETS is not immediately put in place.

Although court decisions will likely be pending for quite some time, employers should consult with their human resources teams to prepare for announcements to the workforce.

Guidance issued Sept. 10 detailed some of what employers can expect, including these six points:

  • OSHA’s ETS will require private sector employers with 100 or more employees to mandate vaccination or weekly testing of all employees. For the 100-employee threshold, employers must count all employees regardless of location.
  • Employers will need to offer paid time off for employees to get vaccinated and recover from any side effects, but employers may choose to require employees to use existing paid-time-off accruals for these reasons.
  • The ETS is expected to include medical and religious exemptions.
  • These requirements will not apply to employees who are working remotely and alone.
  • The ETS will address whether “full vaccination” is required and what proof of vaccination employers may accept.
  • Covered employers found to be in violation of the ETS could face penalties of up to $14,000 per OSHA violation. It is unclear at this time what level of noncompliance will constitute a violation.

Have a plan in place to streamline your workplace response to help mitigate morale issues and keep employees safe throughout this phase of the pandemic.

This article first appeared in The Journal Record on October 1, 2021, and is reproduced with permission from the publisher.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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