Early on November 4, 2021, the federal Occupational Safety and Health Administration (“OSHA”) filed its Emergency Temporary Standard (the “Standard”) requiring employers with 100 or more employees to implement mandatory COVID-19 vaccine policies no later than January 4, 2022.  These rules are added to OSHA’s existing Emergency Temporary Standard for Health Care providers and similar rules adopted by the Safer Federal Workforce Task Force with respect to contracts amended on or after October 15, 2021, or newly awarded on or after November 14, 2021.

Under the new guidance, by January 4, 2022, employers (other than healthcare providers and federal contractors covered under the other rules mentioned above) that employ 100 or more employees must adopt policies requiring that by January 4, 2022, employees either (i) be fully vaccinated, or (ii) submit to weekly COVID-19 testing and mask wearing at work.  An employee is fully vaccinated once he or she is two weeks past primary vaccination with the minimum allowable waiting time between required doses.  To comply, employers are required to:

  • Adopt written policies regarding vaccination and/or the testing and masking alternative;
  • Provide up to 4 hours of paid time off (not offset by other accrued leave) to allow employees to receive vaccinations;
  • Provide paid time off (including any otherwise mandated paid leave) to employees for recovery from vaccination;
  • Notify employees of the new policies and requirements, anti-retaliation rules, and potential criminal penalties for misrepresentation of vaccination status, among other things;
  • Obtain and maintain official records of an employee’s vaccination status;
  • Retain records and make those records available for inspection within the timeframes set forth below, including:
    • 4 Business Hours – Request by OSHA for the employer’s written policy and the aggregate number of fully vaccinated employees; and
    • End of the business day following the date of a request –
      • Individual vaccine documentation and COVID-19 test results;
      • The aggregate number of fully vaccinated employees at a workplace together with the number of employees located at that workplace;
      • Any other information required to be maintained by the Standard.
    • Keep COVID-19 occurrences logged in the employers OSHA 300 log
    • Report to OSHA COVID-19 related hospitalizations within 24 hours of the event following a work-related exposure, and COVID-19 related deaths following work-related exposure within 8 hours of the event.

Note that employers are not required to pay for weekly testing of employees who elect that option.  Also, even if an employer requires vaccination, an employee may seek to avoid vaccination by requesting a religious or disability based accommodation, which the employer must consider on a case-by-case basis.

In determining the number of an employer’s employees, employers must include all employees across all of their U.S. locations, regardless of vaccination status or work location.  For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee test.  Staffing agencies, rather than host companies count jointly employed individuals.  And the host company must count only its employees not received from the staffing agency.  The Standard makes no distinction between full- and part-time employees in determining the 100-employee threshold.  Once an employer reaches the threshold, the Standard applies going forward.  Note that even if an employer meets the threshold, the Standard does not apply to employees of covered employers who (i) do not report to a workplace where other individuals are not present, (ii) are working from home or (iii) work exclusively outdoors.

Penalties for compliance failures are substantial.  OSHA’s explanation of the Emergency Temporary Standard anticipates OSHA’s imposition of penalties associated with egregious (serious) violations.  Those penalties include up to $13,653.00 per violation, with a maximum penalty of $136,532.00 for a willful or repeated violation.  Penalties may also include up to $13,653.00 per day for failure to abate the violation.

While many legal challenges to the Standard have already been filed, and many questions remain about OSHA’s authority to issue and enforce the Standard, given the short timeframe until compliance is required, now is the time for employers to seek the advice of counsel to determine whether they qualify as covered employers, and, if so, to review existing policies and procedures to ensure they are prepared for full compliance on January 4, 2022.

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