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?    

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.

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