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 – Are Small Businesses the Next Target of Biden’s Vaccine Mandate?

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There are times when I really do not like being right about something (don’t worry, your wife says you’re not right very often, so don’t lose any sleep over it). As many of you read in my post yesterday, “OSHA Issues Long-Awaited COVID-19 Vaccine-or-Test Order” (you posted something without me? I guarantee it was dull and boring), the Occupational Safety and Health Administration (“OSHA”) released its COVID-19 Emergency Temporary Standard (“ETS”). As I pointed out, this ETS supports President Biden’s call for employers with 100 or more employees to require employees to be vaccinated against COVID-19 or wear a mask and submit to COVID-19 testing at least weekly. 

Later in the afternoon, I spoke to Zachary Halaschak, an economics reporter at the Washington Examiner, about an article he was writing regarding the ETS. In his article, “Biden retreats on mandates in fear of being ‘Grinch that stole Christmas‘” Halaschak quoted me on my concerns that the 100 employee threshold is only the beginning and that “OSHA could say that the limit should be capped at a lower number like 50 or 25 employees.” (OK, Mr. I’ve been quoted in the Washington Examiner twice this year, remember, you need to get your head through the doorway.) Well, based on a headline I read this morning, “Biden admin considering vaccine mandate for businesses with fewer than 100 employees,” my concerns are well-founded. On page six of the almost 500-page ETS, it states, “OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption. OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination.” (Undue disruption? How about an UNMITIGATED CLUSTER F…well, you get the point.) I really don’t want to be right about this one.  

While we wait to learn if the vaccine-or-test mandate will be extended to smaller employers, let’s look at the highlights (or maybe lowlights) of the ETS. As you read through the list, remember that applicable state and local laws may be different. Also, employers should contact an HR compliance expert (there’s that shameless plug again!) or their employment counsel to discuss their individual situations.

  • The ETS covers employers with 100 or more “employees”  company-wide and includes part-time employees, temporary workers, seasonal workers, and minors. However, independent contractors are generally not counted. 
  • Covered employers must develop, implement, and strictly enforce a mandatory vaccination policy. The policy must require all employees to be vaccinated, including new employees, and may offer the alternative to undergo regular COVID-19 testing and wear a face covering at work. The policy must also include a process for accommodations for medical or religious exemptions. In addition, employers may offer equivalent safeguarding such as 100% remote work. 
  • Employers are not required to cover costs for COVID-19 testing for unvaccinated workers who choose the testing option. However, employers may be required to cover costs for testing pay for employees with medical or religious exemptions, based on other applicable laws, or under collective bargaining agreements or employment contracts. 
  • All unvaccinated workers must begin wearing face coverings by December 5, 2021.
  • Also, effective December 5, 2021, employers must begin providing paid time off for workers to get vaccinated and recover from any vaccination side effects.
  • The deadline for workers to be fully vaccinated or submit to weekly testing and provide proof of a negative COVID-19 test at least weekly is January 4, 2022. The ETS defines “fully vaccinated” as two weeks after the second dose of a two-dose vaccine, such as Pfizer or Moderna, or two weeks after a single-dose vaccine, such as Johnson & Johnson. 
  • Employers may face penalties of up to $13,653 for each serious violation. If an employer is deemed to have deliberately disregarded the mandate, it could face fines as high as $136,532 per violation. 
  • This ETS does not apply to federal contractors or federal contractor workplaces covered by the Safer Federal Workforce Task Force guidance requirements, or workplaces covered by the emergency regulations issued on November 4, 2021, by the Centers for Medicare & Medicaid Services (CMS). These workplaces are subject to mandatory vaccination policies with no options for weekly testing. 

Now, for the administrative requirements, covered employers must obtain proof of vaccination by one of the following:

  • A record of immunization from a healthcare 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 verifying vaccination, with information on the vaccine name, date(s) of administration, and the name of the healthcare professional or clinic site administering the vaccine.

Employers should treat all proof of vaccination documentation as medical records, in a locked file, separate from the employees’ personnel files, and access limited to need-to-know only.  Vaccination documentation should be maintained for the duration of the ETS. OSHA provides a small relief in that employers are not required to retain this documentation for OSHA’s typical 30-year retention period (oh, that’s so generous!).  

Finally—well, not really, but for now—I’ll leave you with something you may find especially concerning. Upon request, employers must provide employees with their individual COVID-19 vaccination documentation and any COVID-19 test results by the end of the next business day. Further, an employee, or an employee representative, is entitled to data regarding the vaccination status of the entire workplace (that is pure cray-cray!).

After what you’ve read, if you’re an employer of fewer than 100 employees, what feedback would you give OSHA (can it include F-bombs for special emphasis?) to help them decide whether this mandate would cause “undue disruption” to your business?    


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.

OSHA Issues Long-Awaited COVID-19 Vaccine-or-Test Order

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Man being vaccinated-sm

There’s just no end to the COVID news over the last few days!

 This morning, the Occupational Safety and Health Administration (“OSHA”) released its long-awaited COVID-19 Emergency Temporary Standard (“ETS”). This ETS is in response to President Biden’s call for employers with 100 or more employees to require their employees to be vaccinated against COVID-19 or wear a mask and submit to COVID-19 testing at least weekly.

 In addition, the White House announced the following:

  • All unvaccinated workers must begin wearing masks by December 5, 2021, and provide proof of a negative COVID-19 test at least weekly beginning January 4, 2022.
  • The deadline for federal contractors to comply with similar provisions of the President’s Executive Order (“EO”) 14042 has been pushed out to January 4, 2022.
  • Employers are not required to pay for or provide COVID-19 tests for their employees unless required under state or local laws or as part of a collective bargaining agreement.

With this announcement, my team and I recommend that covered employers review their COVID-19 workplace policies – i.e., NY employers’ NYS HERO Act, Section 1, workplace safety plans – and make the appropriate updates by the deadlines set forth in the ETS. Further, we recommend employers check with their health insurance plan providers to determine if the cost of mandated weekly testing is covered or if it will be an out-of-pocket expense for employees. Lastly, employers should prepare to have difficult conversations with employees about this often heated and emotional topic.   

Of course, there will be legal challenges to this federal mandate. However, as with so many other laws, rules, and regulations, employers should plan for full compliance and adjust those plans as necessary along the way.

This is a complex mandate with countless questions – many not yet thought of – and intersections with state and local laws and regulations. We’ll be doing our research over the coming days and weeks and will keep you updated along the way. So, buckle up and get ready for another bumpy ride!


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.