Presented on Nov. 10, 2021 by Sean Monson, Amy Lombardo and Christina Hardesty

1. parsonsbehle.com
New Vaccination Rule: What Does it Mean for
Employers with More Than 100 Employees? A Lot!
Wednesday, November 10, 2021

2. 2
This webinar is based on available information as of November 10,
2021, but everyone must understand that this webinar is not a
substitute for legal advice. This presentation is not intended and will
not serve as a substitute for legal counsel on these issues.
Legal Disclaimer

3. 3
Presenters:
Christina W. Hardesty
Director of Legal –
Amalgamated Sugar Company
208.383.6500
Sean A. Monson
Employment & Labor
Chairperson – Salt Lake City
Parsons Behle & Latimer
801.536.6714
smonson@parsonsbehle.com
Amy Lombardo
Shareholder – Boise
Parsons Behle & Latimer
208.562.4900
alombardo@parsonsbehle.com

4. 4
OSH Act and the November 5th ETS
 OSH Act allows OSHA to make Emergency Temporary Standards –
“grave danger”
 ETS takes effect November 5, 2021
 Enforcement begins December 6, 2021 except for testing and
vaccination components
 Enforcement on those components begins January 4, 2022
 Because ETS did not go through ordinary rule making process, lasts
6 months

5. 5
Federal Plan v. State Plan States
 Before ETS, some states had their own safety plan approved by the
federal government
 Those states enforce the state plan
 Utah and Nevada have their own state plans
 Those states have to either adopt the ETS or change their plan in a
way that “is at least as effective” as the ETS
 They have to do that within 30 days
 They have to notify federal government what they are going to do
within 15 days

6. 6
ETS Legal Status
 Multiple legal challenges by states including Utah and Idaho
 Fifth Circuit Court of Appeals has stayed enforcement – day after
ETS was released
 All the cases will be consolidated – deciding court is decided by a
lottery – that is expected 11/16/2021
 Expect a decision sometime around Thanksgiving (maybe)
 Make plans, put them in place, wait to see – don’t scramble at the
end if ETS holds up

7. 7
Stated Purpose of ETS
 Establish minimum standards for:
o Vaccination, verification, face covering, and testing requirements
o To address “grave danger” of Covid-19 in the workplace.
 Preempt state and local laws that interfere with the employer’s
authority to require the above
 Rule specifically referenced those states where a law or executive
order forbid private companies from enacting standards (Montana
and Texas, for example)
 Ultimately the courts will decide whether a “grave danger” exists

8. 8
COVERED EMPLOYERS UNDER ETS
 100 or more employees (for now)
o Part-time employees count
o Independent contractors do not
o All employees across all offices/locations in the US count
 Related entities
o Counted as a single employer if “handle safety matters as one company”
• No guidance on “safety matters”
• No guidance on whether integrated operations doctrine or other tests from other laws will
be used

9. 9
EMPLOYER COVERAGE
 “Single Employer” considerations
o How interrelated are employers with regard to safety issues
• One safety director, or one for each entity
• How have any prior OSHA complaints been responded to – the “mother ship” or the
individual company
• One safety policy, or individualized safety policies
o How treated under other laws (although OSHA has not said whether this will
be relevant)

10. 10
Employer Coverage – One Way Street
 If covered employer as of November 5, 2021, ETS applies during
duration of ETS being in place
 If not covered as of November 5, 2021, but hire more workers so get
over 100 employee threshold, then ETS applies – not clear how long
you have to comply if become covered employer say, on January 10,
2022

11. 11
Employer Coverage v. Employee Coverage
 It is different
 Employees count towards the 100 threshold but might not be
covered by the ETS
 What?
 If have 101 employees, 99 of them work exclusively outside, the
employer is covered, but only 2 employees are (those who work
inside) are covered (have to be vaccinated or test + face covering)
 Staffing company employees do not count as the client employees

12. 12
Exempt Employers
 ETS does NOT apply to
o Workplaces that are covered under the Safer Federal Workforce Task Force
COVID-19 Workplace Safety: Guidance for Federal Contractors and
Subcontractors
o Work settings where an employee provides healthcare services or healthcare
support services when subject to the requirements of 29 CFR 1910.502

13. 13
Excluded Employees
 Employees Not Covered*
o Those who work where no co-workers or customers are present
o Those employees working from home (WFH)
o Those employees who work exclusively outdoors
 If these typically remote or outdoor employees come into the office,
the ETS will apply
*included for count of employees, but excluded from mandate

14. 14
ETS Coverage and Requirements
 Threshold – 100 or more employees
 Mandatory vaccination program OR
 Voluntary vaccination or weekly testing + face covering
 Employers must also:
o Establish and enforce written policy
o Provide information to employees on vaccines and requirements of ETS
o Provide paid time off to get vaccinated and recover from side effects
o Maintain a roster of vaccination status
o Comply with notice and removal requirements when EE contracts COVID

15. 15
Vaccination Policy: Establish, Implement & Enforce
 Employers must have a written policy.
o Encourage vaccination; explain importance of vaccination
o Include information on how and where to get a vaccination and testing, if
applicable
o Specify how testing will be done and where results should be turned in, if
applicable
 If time, policy should be socialized and rolled out in advance
 Determine the vaccination status of each employee
• Includes whether each employee has reached full vaccination status

16. 16
Vaccination Policy: Establish, Implement & Enforce
 Collect and log proof of vaccination
o Acceptable proof: (scans/photos/digital record is OK, if it can be stored)
• Immunization record from a pharmacy or health care provider
• Copy of a vaccination card
• Copy of a medical record which documents immunization record
• Copy of immunization records from a public health, state, or tribal immunization information system
• Copy of any other official documentation that contains the type of vaccine administered, date(s), name of provider
o If an employee is unable to provide proof, he or she may provide a signed
attestation provided by employer

17. 17
Vaccination Policy: Establish, Implement & Enforce
 Enforcement
o If an employee cannot locate proof of vaccination, she must attempt to do so
o An employee without proof should be treated as unvaccinated
o Policy must include consequences for non-compliance
o Employees who are not vaccinated and who do not provide proof of a
negative test should be removed from the office
o Employees who test positive should be removed from the office; follow return
to work protocols
 Penalties are severe for non-enforcement - $13,653 per violation, $136,532 for
willful or repeated violations

18. 18
Paid Time Off
 Employer is required to provide reasonable time off for employees to get
vaccinated (up to 4 hours of duty time for each dose); additional unpaid
protected leave may be requested and should be granted if reasonable
 An employer cannot require an employee to use accrued paid leave
 Up to 2 workdays of sick leave following each dose is required (use sick leave
first; 2 days leave granted if no leave)
 Pay for time employees take to get tested? Probably, if testing is during a work
shift. More guidance forthcoming, but check state and local laws and collective
bargaining agreements.

19. 19
Recordkeeping
 Create and maintain a log – inspections may occur.
 Employers must retain copies of documents (vaccinations & tests)
 Test results are considered to be employee medical records and maintained as
such under 29 CFR 1910.1020 while ETS is in effect
 ADA requires medical records to be kept separate from HR files, only able to be
accessed by select few who have a need for the information.
 Aggregate number of fully vaccinated employees at workplace and total number
of employees at workplace upon request of any employee (by end of the next
business day).
 OSHA and employee may request individual test results

20. 20
The Testing Alternative
 Recommendation replaces symptom screen and temperature
checks as more effective mitigation measures – to catch pre-
symptomatic and asymptomatic cases and help with early treatment
 Definition: not both self-administered and self-read unless observed
by the employer or an authorized telehealth proctor
 Minimum frequency of testing the unvaccinated is every 7 days.
 Employee should provide test result document every 7 days
o Employers may want to set a schedule for testing
o Teleworking employees must test w/in 7 days before arrival at work

21. 21
The Testing Alternative
 Employer not required to pay costs associated with the actual testing
o Make sure you’re not required to pay such as under collective bargaining
o May volunteer to pay for testing
 Employers much require each employee to promptly notify employer when they
are Covid-19 positive; must be immediately removed (paid time off not required
here).
 Employers are prohibited from requiring testing for 90 days after
o Positive Covid-19 test or
o Positive diagnosis by a licensed healthcare provider

22. 22
Testing (& Masking) Alternative
 Employers must ensure employees who are not fully vaccinated wear a face
covering when
o Indoors
o In a vehicle with another person for work purposes
 Exceptions
o When alone in an enclosed room w/door closed
o When eating or drinking, or for safety or identification purposes (limited time)
o When wearing respirators or facemasks
o Where use of face coverings is infeasible or creates a greater hazard

23. 23
OSHA REPORTING
 Work-related fatality must be reported to OSHA within 8 hours
 Work-related in-patient hospitalization must be reported w/24 hours
 Follow instructions in § 1904.39 except for 39(a)(1) and (a)(2) and (b)(6)
(requirement is not limited to length of time between infection and death)
 Reporting detail:
o Name(s), time, location of exposure that led to fatality
o Fatality or in-patient hospitalization
o Brief description of the incident; contact info of designated contact person

24. 24
OSHA REPORTING
 How to Determine Whether a Covid-19 Exposure is Work-Related:
o Consider the type, extent, and duration of contact the employee had at work
with other people, particularly the general public;
o Consider physical distancing and other controls that impact the likelihood of
work-related exposure;
o Consider the extent and duration of time spent in a shared indoor space with
limited ventilation; and
o Consider whether the employee had work-related contact with anyone who
exhibited signs and symptoms of Covid-19.

25. 25
DISABILITY EXEMPTION
 The ETS recognizes exceptions for certain employees
o Disabled
o Religious beliefs
 Disability
o Can require certification from a medical provider
• Employee has a disability under the ADA
• Employee can’t take vaccine because of the disability

26. 26
RELIGIOUS EXEMPTION
 Employee must hold a sincerely held religious belief
 What is a sincerely held religious belief is squishy
 Dreaded “case by case” analysis

27. 27
Religious Exemption – What is Religion
 “Religion” includes “all aspects of religious observance and practice
as well as belief,” not just practices that are mandated or prohibited
by a tenet of the individual’s faith.
 Religion includes not only traditional, organized religions such as
Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, but
also religious beliefs that are new, uncommon, not part of a formal
church or sect, only subscribed to by a small number of people, or
that seem illogical or unreasonable to others.

28. 28
Religious Exemption – What is Religious
 A belief is “religious” for Title VII purposes if it is “religious” in the person’s “own
scheme of things,” i.e., it is a “sincere and meaningful” belief that “occupies a
place in the life of its possessor parallel to that filled by . . . God.”
BUT
 Religion typically concerns “ultimate ideas” about “life, purpose, and death.”
 “First, a religion addresses fundamental and ultimate questions having to do with
deep and imponderable matters. Second, a religion is comprehensive in nature;
it consists of a belief-system as opposed to an isolated teaching. Third, a
religion often can be recognized by the presence of certain formal and external
signs.”

29. 29
Religious Exemption – When Can You Ask
 If an employee requests a religious accommodation, and an
employer is aware of facts that provide an objective basis for
questioning either the religious nature or the sincerity of a particular
belief, practice, or observance, the employer would be justified in
requesting additional supporting information.
o Form letter from the Internet
o Only addresses COVID 19 without context of a broader belief – religion
generally is not a single-issue belief system
o Letter from pastor saying that pastor respects the beliefs of the employee
o Violates the Nuremberg Code

30. 30
Religious Belief – What Can You Ask
 Verification from a religious leader
 Documentation about religious belief
 Others that can verify the employee holds the belief
 Are there rituals or other aspects to the belief system
 When first begin holding the religious belief
 COVID 19 specific inquiries
o Verify never take vaccinations
o Verify never introduce “unnatural” elements into body
o Verify never use products that were developed with fetal stem cells

31. 31
Religious Belief -- Credibility
 Factors that – either alone or in combination – might undermine an
employee’s credibility include:
o whether the employee has behaved in a manner markedly inconsistent with
the professed belief;
o whether the timing of the request renders it suspect (e.g., it follows an earlier
request by the employee for the exemption based on disability that was
denied); and
o whether the employer otherwise has reason to believe the accommodation is
not sought for religious reasons.

32. 32
Religious and Disability Exemption -- Accommodation
 Accommodation – interactive process
o Not required if:
• Would pose a direct threat to EE
• Would pose a direct threat to co-workers
• Would pose a direct threat to customers/clients
• Causes an undue burden to the employer
 Direct threat factors -- (1) the duration of the risk; (2) the nature and
severity of the potential harm; (3) the likelihood that the potential
harm will occur; and (4) the imminence of the potential harm.

33. 33
Religious and Disability Exemption -- Direct Threat
Factors
 The assessment of direct threat should take account of the type of
work environment:
o whether the employee works alone or with others or works inside or outside;
o the available ventilation;
o the frequency and duration of direct interaction the employee typically will have with other
employees and/or non-employees;
o the number of partially or fully vaccinated individuals already in the workplace;
o whether other employees are wearing masks or undergoing routine screening testing;
o the space available for social distancing.

34. 34
Religious and Disability Exemption – Undue Hardship
 Undue Hardship
o Employers may rely on CDC recommendations when deciding whether an
effective accommodation is available that would not pose an undue hardship.
o ADA -- undue hardship is an action requiring significant difficulty or expense
as it relates to the individual business.
o Title VII -- undue hardship is an action having more than minimal cost or
burden on the employer.
• This is an easier standard for employers to show than the ADA’s undue hardship
standard.

35. 35
Religious and Disability Exemptions -- Accommodations
 ETS – unvaccinated – testing and masking
 Things we did before the vaccine
o Work from home
o Physical distancing from co-workers and customers

36. 36
Presenters:
Christina W. Hardesty
Director of Legal –
Amalgamated Sugar
208.383.6500
Sean A. Monson
Employment & Labor
Chairperson – Salt Lake City
Parsons Behle & Latimer
801.536.6714
smonson@parsonsbehle.com
Amy A. Lombardo
Shareholder – Boise
Parsons Behle & Latimer
208.562.4900
alombardo@parsonsbehle.com