IMPORTANT: Vaccine Mandate – How to be Prepared

Emergency Vaccine Mandate Update

As you’re aware, the stay on the Emergency COVID Vaccine rule has been lifted and challengers have appealed to the Supreme Court. Until the Supreme Court renders a decision, OSHA will proceed with enforcement.

January 10, 2022 is the initial compliance deadline for every requirement except the mandatory COVID-19 vaccination or weekly testing/required masking. February 9, 2022 is the new deadline for the vaccine mandate or weekly testing/required masking. The upcoming Supreme Court ruling may or may not affect these dates.

What You Need to Know

To determine if the ETS applies to you and what measures need to be completed by the initial compliance deadline, please see the following:

Definition of Employers Covered by the ETS:

• All employers with a total of at least 100 employees firm-or-corporate wide (regardless of location) as of 11-5-2021
• Includes part-time employees and temporary employees when employed at ANY TIME the ETS is in effect
• Staffing agency employees are counted for purposes of the staffing agency only
• Franchises are separate entities for coverage purposes
• Two or more related entities may be regarded as a single entity for OSHA purposes if they handle safety matters as one company
• Once covered, either as of effective date or after effective date, you stay covered

Minimum Requirements of the ETS(refer to link below for complete list):

• Determination of the vaccination status for each employee
• Mandatory vaccination policy OR a policy allowing employees who are not fully vaccinated to elect to undergo a weekly COVID-19 testing AND wear a face covering at the workplace (Employer’s Choice)

Deadlines:

• To be completed by January 10th: 
  • Establish vaccination or testing policy
  • Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status
  • Require employees who are not fully vaccinated to wear face coverings when indoors or when occupying a vehicle with another person for work purposes
  • Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation
  • Provide paid leave for employee vaccination
  • Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis and remove any employee who received positive COVID-19 test or COVID-19 diagnosis
  • Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours
  • Make certain records available

• To be completed by February 9th
  • Ensure employees who have not received all doses required for primary vaccination are tested for COVID-19 at least weekly

Determination of Vaccination Status:
Acceptable proof of vaccination:

• The 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 system; or
• A copy of any other type of 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

Testing in Lieu of Vaccination:
If you do not wish to mandate vaccination:

• Weekly testing (if in the workplace at least once a week) so documentation of result is provided no more than 7 days from the last test result, or in the case of a person who is away from the workplace a week or longer, within 7 days of returning to work
• Employees who do not provide documentation of testing result must be removed from workplace until they do so

Other Testing Rules:

• Employers must maintain copies of test results as medical records for duration of the ETS
• Employees with COVID cannot be required to test for 90 days following a positive test or diagnosis
• Employers are not required to pay for testing by ETS, but may be required by other laws, regulations, CBA’s, or required as a reasonable accommodation

Practical Considerations for Testing(refer to link below for complete list):

• Testing at work would minimize potential costs associated with travel and waiting time and the administrative burden of tracking/paying for time outside of normal working hours
• Testing at work would require careful consideration of privacy concerns, similar to when employers were taking temperatures at work
• Testing at home would still require employer or lab oversight
• Possible option, require employees to go to a testing facility within a certain proximity to work or home and agree to pay a set fee based on the location

Please refer to the following document provided by Clark Hill to assist with compliance of the ETS
Requirements, Implications, and Best Practices for Employers

In response to the ruling, OSHA posted this statement on its webpage:

“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

Be Prepared.

If you have any questions or would like any additional information, please contact us.