The OSHA COVID-19 Vaccine-or-Test Order Is On Again…But Will It Stay On?

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COVID Vaccine sign

As you likely know, late Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision lifting the stay on the Occupational Safety and Health Administration (“OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). This action, which allows OSHA to move forward with implementing the ETS, removed the stay previously issued by the Fifth Circuit. (Is this going to be another long boring article about stuff nobody but you understands or cares about?) However, immediately following the Six Circuit’s decision, it was appealed to the U.S. Supreme Court. Justice Brett Kavanaugh, who handles all emergency appeals for the Sixth Circuit, subsequently ordered the Biden Administration to file its briefs on the matter by 4:00 pm on December 30, 2021 (you should read one of your articles to your grandchildren as a bedtime story, it’s guaranteed to put them right to sleep!). With that timeline, it’s unlikely we’ll have any decision until after January 1, 2022.

In the meantime, employers with 100 or more employees should prepare to implement the OSHA COVID-19 ETS in their workplaces. A good starting point is; OSHA’s ETS FAQs. OSHA stated that it will not issue citations for non-compliance with any requirements of the ETS before January 10, 2022. Further, OSHA will not issue citations for non-compliance with the ETS testing requirements before February 9, 2022, as long as the employer exercises reasonable, good faith compliance efforts. To help support that they’ve demonstrated good faith compliance efforts, employers should: 

  • Notify all employees of the ETS requirements—as a condition of employment, they will need to get vaccinated or be required to test weekly.
  • Survey employees on their vaccination status, including a request for proof of vaccination, and record their vaccinated or unvaccinated status in a spreadsheet or other roster. The ETS further requires employers to maintain this documentation, including copies of each employee’s proof of vaccination, and record any employee who refuses to respond or provide proof of vaccination as unvaccinated.
  • Provide paid time off for employees to get the COVID-19 vaccine and/or to recover from effects of the vaccine.
  • Develop and implement a COVID-19 policy that requires employees be fully vaccinated against COVID-19 or, for unvaccinated employees, weekly testing. The policy must also state that unvaccinated employees must wear a mask in the workplace  and while with other employees in a vehicle or when together for work-related purposes. The policy must also include protocols for screening non-employees entering the workplace.
  • Enforce necessary quarantine periods for employees who test positive for COVID-19.
  • Where testing will be used as an option, begin procuring tests and/or exploring local options for testing that may be used and begin implementing the testing option on or before February 9, 2022.

This is a complex mandate (wow, King of the understatements on this one!) with an exhaustive list of questions – many not yet thought of – and don’t forget about the intersections with state and local laws and regulations (how could we!). My team and I will continue to monitor the situation over the coming days and weeks and will keep you updated along the way. So, buckle up and get ready for bumpy sleigh ride!

On behalf of everyone at HR Compliance Experts (and me, Frank’s snarky alter ego), we wish you a safe and happy holiday season and a Happy New Year!


If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking – Gifts to NY Employers Just Keep Coming!

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Santa with List

If you didn’t know this announcement was coming, I have a large box of masks made by Oregon Gov. Kate Brown I’ll sell you at a great price. (Santa said to stop picking on Gov. Brown or you’re going on the “naughty” list, one of the elves thinks her mask is really cool.) In addition to their incredibly generous gift of a mask mandate just in time for the holidays, NY Gov. Kathy Hochul and NY Commissioner of Health, Dr. Mary Bassett, again extended COVID’s “highly contagious” designation through at least January 15, 2022. That means employers must keep their HERO Act safety plans in place and active through at least January 15, 2022 as well. 

As I previously wrote about in July, September, and October (I think you need to find something else to write about), the NY HERO Act is intended “to protect employees against exposure and disease during a future airborne infectious disease outbreak,” and is activated when the state’s health commissioner designates, in this case, COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. First activated on September 6, 2021, the HERO Act’s “activated” status has been extended for the third time, now through January 15, 2022. With that extension, employers must continue measures such as daily health screenings for all employees.

Further, Gov. Hochul’s mask mandate, effective December 13, 2021, requires all employees, customers, and visitors in all indoor public places—including office buildings and spaces—to wear a mask at all times, with very limited exceptions, unless the covered business or venue requires proof of vaccination from everyone before they enter. (How’s that working out so far?) Lastly, (you promise?) whether by design or coincidence (my money is on dumb luck), both the most recent extension of the HERO Act and the mask mandate are effective through January 15, 2022. I’m sure I can get another box of masks from Gov. Brown, so let me know  you want to wager on whether they’ll be extended.  


If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at hranswers@hrcexperts.com, or call 585-565-3900.

Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at hranswers@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking – Nothing says “Happy Holidays” like a new mask mandate!

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Gov Kate Brown

Nothing fills the hearts of my team at HR Compliance Experts with holiday joy like a mid-December mask mandate! In fact, instead of an ugly sweater contest, I think we’re having an ugly holiday mask contest this year. (If you’re joking, you’re not funny, and if you’re serious, I hope your entire team quits the minute their holiday bonuses hit their bank accounts!) You should have been there when we learned that NY Gov. Kathy Hochul (not to be confused with Oregon Gov. Kate Brown (left), the undisputed ugly holiday mask champion for life) directed the state’s Department of Health (“DOH”) to issue a new mask mandate effective Monday, December 13, 2021. We were so excited that the walls of our virtual office were shaking! (OK, can we move this along, people have better things to do.)     

Effective Monday, December 13, 2021, the mask mandate remains in effect through January 15, 2022, when the DOH will “reevaluate based on current conditions.” In her statement, Gov. Hochul cited a “winter surge” in COVID-19 cases and hospitalizations throughout NY State as the reason for the new mandate. According to the state’s recently released guidance, “masks will be required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement.” Further, “new business and venue requirements extend to both patrons and staff,” and “businesses and venues that implement a mask requirement must ensure all patrons two years and older wear a mask at all times while indoors.” 

The mask mandate defines an “indoor public place” as any indoor space that is not a private residence. That includes specific public settings, such as health care and adult care facilities, K-12 schools, correctional facilities, homeless shelters, public transportation centers and hubs, and “all indoor public places” not otherwise covered by the mandate. (So, in non-government speak, EVERYWHERE!) Violators of the mask mandate may be subject to a maximum fine of $1,000 per violation

The DOH issued a list of FAQs to answer some common questions and help clarify (now that is funny!) potential issues. For example:

Q: Does this policy apply to office spaces?

A: Yes, the requirement applies to all non-private residences, including office spaces. If the office does not require proof of vaccination as a condition of entry, everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room. 

Q: What about businesses covered under the NY HERO act?

A: Employers must continue to comply with the NYS Health and Essential Rights Act (NY HERO ACT)…For purposes of complying with the NY HERO Act, the Commissioner’s Determination constitutes Department of Health guidance related to face coverings, meaning employers must ensure their employees adhere to masking requirements or require proof of vaccination as a condition of entry into the business.

Q: What are the Details for a Business/Venue Proof of Vaccination Requirement?    

A: Businesses and venues that implement a proof of vaccination requirement must ensure that anyone 12 years of age or older is fully vaccinated before entering indoors. Businesses/venues can accept Excelsior PassExcelsior Pass Plus, SMART Health Cards issued outside of New York State, full-course vaccination through NYC COVID Safe app, a CDC Vaccination Card, or other official immunization record.

In accordance with CDC’s definition, fully vaccinated is defined as 14 days past an individual’s last vaccination dose in their initial vaccine series—14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine or 14 days past the one-shot Janssen/Johnson & Johnson vaccine. The State also accepts WHO-approved vaccines for these purposes. Parents and guardians can retrieve and store an Excelsior Pass or Excelsior Pass Plus for children or minors under their legal guardianship.    

Q: How will these requirements be enforced? 

A: It is our expectation that New Yorkers will understand the importance of following this requirement as we enter this holiday season, where a surge in cases is expected. Enforcement will be done by the local health departments, and the maximum civil penalty is a $1,000 fine. 

Q: Who could receive the fine, the business or venue, or an individual in violation of the requirements?

A: Pursuant to regulation, individuals or business/venue entities that violate the determination are subject to a maximum fine of $1,000 for each violation. Local health departments can enforce these requirements.    

Employers in NY State should also note that, if a mask policy is implemented for employees—i.e., if the employer does not require proof of vaccination to enter the workplace, so everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room—the employer must provide employees with an adequate supply of face coverings/masks at no cost to the employees. 

My team and I will continue to burn the midnight oil (you realize no one under the age of 90 knows what that means, right?) to monitor the state’s guidance and FAQs and provide updates as appropriate. In the meantime, get busy with your own ugly holiday mask contest…and don’t forget to send us pictures!   


If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.