- President Biden issued a vaccine mandate requiring employers with over 100 employees to ensure their workers are vaccinated or tested weekly. This impacts around 80 million American workers.
- OSHA issued an Emergency Temporary Standard implementing this mandate. It requires covered employers to establish a mandatory vaccination policy or weekly testing and mask wearing for unvaccinated employees. It also mandates paid time off for vaccination and protocols for handling positive COVID-19 cases.
- The mandate is currently stayed pending appeals but is expected to go into effect on January 4, 2022. Employers are advised to begin compliance efforts now and prepare accommodation and record keeping procedures.
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Path out of the Pandemic
• President Biden’s strategy to combat COVID-19
• Includes vaccine mandates for federal contractors and many healthcare
workers;
• Requiring all employers with 100+ employees to ensure their employees are
vaccinated or tested weekly;
• Requiring employers to provide paid time off to get vaccinated.
• Encourage Boosters – Pfizer boosters for all next week.
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Vaccine Mandate
• OSHA issued a vaccine/testing rule that applies to all private employers
with more than 100 employees.
• “Company wide basis”
• Estimated to impact 80 million workers, or two-thirds of the country’s
workforce.
• Employers required to collect proof of vaccination
• CCPA
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Vaccine Mandate
• Rule took the form of an Emergency Temporary Standard.
• Allows the agency to enact regulations it can enforce immediately if a “grave
danger” to worker safety is present.
• Covered employers who ignore the standard could face OSHA citations
and penalties of nearly to $14,000 per violation.
• Currently the ETS is stayed pending an appeal to the Sixth Circuit
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How does the Federal Law apply to CA?
• Since California already has COVID-19 standards, Cal-OSHA has up to 30
days to adopt the federal ETS or alternative regulations or standards
that are at least as effective as the ETS.
• The state has elected to wait out the appeals process.
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Which employers are covered?
• ALL employers covered by the OSH Act must comply with the
forthcoming ETS.
• Includes many office-based employers who do not regularly interact
with OSHA.
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When will the ETS likely be effective?
• Currently enjoined, but the deadline for compliance is January 4th
• Likely that the injunction fails, even in front of a Conservative SCOTUS
• OSHA officials have also urged businesses to voluntarily begin the
process of adopting vaccination mandates, without waiting for the
agency to release the ETS.
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What are the key obligations?
• Mandate covered employees be fully vaccinated against COVID-19 or require
covered employees that are not fully vaccinated to test for COVID-19 at least
weekly and wear a face covering.
• Enforce a written policy on vaccines, testing, and face coverings;
• Provide notice to employees on vaccines and the requirements of the ETS
• Provide paid time off to employees to obtain the vaccine and reasonable time
and paid sick leave to recover from side effects;
• Obtain and maintain records and roster of employee vaccination status;
and
• Notice requirements when there is a positive COVID-19 case and reporting to
OSHA when there is an employee work-related COVID-19 fatality or
hospitalization (Already in place in CA).
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• Are remote employees be
covered?
• The ETS requirements (such as showing
proof of vaccination or weekly testing) do
not apply to employees who never work
in an office and never meet with co-
workers or customers. However, you must
still include those employees in your
count to determine if you meet the 100-
employee threshold.
Key Questions
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• How is the 100-employee threshold be counted?
• Employers must include (i.e. count) all employees across all of their U.S.
locations, regardless of an employee’s vaccination status or where they
perform their work.
• Part-time employees do count towards the total number of employees, but
independent contractors do not.
• As in other employment law contexts, you should be cautious about
independent contractors who may be misclassified and could be found to
meet the legal definition of an employee.
Key Questions
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• What documentation is required?
• Employers must require employees to provide an acceptable
proof of vaccination status,
• If no proof of vaccination is provided, you must treat such
employees as unvaccinated.
• Acceptable proof of vaccination status is:
• the record of immunization from a health care provider or pharmacy;
• a copy of the COVID-19 Vaccination Record Card;
• a copy of medical records documenting the vaccination;
• a copy of immunization records from a public health, state, or tribal
immunization information system; or
• a copy of any other official documentation that contains the type of
vaccine administered, date(s) of administration, and the name of the
health care professional(s) or clinic site(s) administering the vaccine(s).
Key Questions
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Records continued…
• Employers that collected proof of vaccination status before the effective
ETS date and have retained such records, are not required to re-
evaluate vaccination status for fully vaccinated employees and are
permitted to use any record of response, even if it is not listed as
acceptable proof under the ETS.
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Records continued…
• The ETS requires employers to maintain a record and a roster of each
employee’s vaccination status. You must also maintain a record of each
test result provided by each employee. These records must be
maintained as confidential medical records and must not be disclosed
except as required or authorized by this ETS or other federal law.
• The records are not subject to the retention requirements of 29 CFR
1910.1020(d)(1)(i) but must be maintained and preserved while the
ETS is in effect (at least six months). The standard OSHA 30-year
record retention requirements do not apply.
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• What type of testing is required?
• Cleared, approved, or authorized, including
in an Emergency Use Authorization (EUA),
by the U.S. Food and Drug Administration
(FDA) to detect current infection with the
SARS-CoV-2 virus (e.g., a viral test);
• administered in accordance with the
authorized instructions; and
• not both self-administered and self-read
unless observed by the employer or an
authorized telehealth proctor.
Unanswered Questions
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• Who pays for testing?
• The ETS does not require employers to pay for
the cost of COVID-19 testing.
• However, this is California.
Unanswered Questions
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• Who pays for time spent getting tested?
• The ETS states the “ETS does not require employers to
pay for any costs associated with testing.”
• Under current DOL and Labor Code guidance,
employers are required to pay employees for time
spent waiting for and receiving medical attention
(including COVID-19 testing) at their direction or on
their premises during regular working hours under
the Fair Labor Standards Act (FLSA).
Key Questions
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What Should You Do?
• Adopt Procedures for Determining Employees’ Vaccination Status
• Proceed as if the ETS will be affirmed.
• Maintain confidential records of employee vaccination status.
• EEOC has indicated it is lawful to ask employees about COVID-19 vaccination
status, but this should end your inquiry.
• ETS may require that you collect proof of vaccination.
• Otherwise, create a confidential list of vaccinated workers.
• Review state laws regarding confidentiality and privacy of medical records.
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What Should You Do?
• Determine if you will mandate the vaccine or allow unvaccinated
employees to be tested weekly.
• For some employers, collecting and tracking weekly test results may burden them such
that they decide to adopt a mandatory vaccination policy.
• OSHA officials stated that employers may require vaccinations without providing the
alternative for weekly testing (subject to accommodations)
• If planning for weekly testing, think through the logistics:
• Onsite or through designated vendors?
• Payment for testing
• Payment of time for testing
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What Should You Do?
• Have a plan for tracking test results.
• You should have a plan in place for collecting and tracking test results.
• Who is going to collect the results?
• When will the test results need to be collected?
• How will you track the results?
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What Should You Do?
• Have a plan for addressing noncompliance by employees.
• What happens to an employee who does not get tested?
• What happens to an employee who refuses to get vaccinated?
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What Should You Do?
• Develop a plan for handling accommodation requests.
• Employees may request accommodations for disabilities or for religious reasons
under federal or state laws.
• Develop a robust and clear reasonable accommodation policy to address
religious and disability issues.
• Communicate and administer the accommodation process thoughtfully,
emphasizing individualized, confidential consideration of each request.
• Be prepared for employees to request an accommodation from the weekly
testing requirement.
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What Should You Do?
• Prepare for OSHA Complaints and Inspections
• The vaccination ETS will not displace current compliance duties related to
COVID-19 prevention and mitigation.
• OSHA will likely ask for your COVID-19 response plan and training records.
• Develop a COVID-19 policy and communicate its requirements to your
employees.
• Train managers and supervisors on what to do and say if OSHA arrives for an
inspection.
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What Should You Do?
• Mandates and Masking:
• https://www.fisherphillips.com/innovations-center/COVID-19-Private-
Employer-Maps.html
