After weeks of uncertainty and legal wrangling, the federal government's vaccination mandate for employers with 100 or more employees is back in force.
OSHA originally published the emergency temporary standard (ETS) setting COVID-19 vaccination and safety standards for covered employers on Nov. 5. The ETS required compliance within 30 days, but the U.S. Court of Appeals for the Fifth Circuit issued a stay of the ETS pending judicial review.
After various legal challenges were consolidated before the U.S. Court of Appeals for the Sixth Circuit, on Dec. 17, that court dissolved the Fifth Circuit's stay, finding that concerns that the rule would impose substantial costs on employers and lead to staffing shortages were "entirely speculative," and finding that OSHA "demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces."
On Dec. 18, OSHA responded with a statement that extended compliance deadlines, but otherwise kept the ETS intact.
With the ETS back on track, here are key considerations for employers:
- Short compliance timeline
On Dec. 18, OSHA stated that it will not issue citations for noncompliance with any of the ETS requirements before January 10, and will not enforce compliance with the testing requirements before Feb. 9, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."
- Broad employer coverage
The ETS applies to all private sector employers with at least 100 employees (except workplaces subject to another federal vaccine mandate).
All employees across all locations count toward the 100-employee threshold, including off-site, remote, seasonal and part-time workers.
- Public sector employers
Because Connecticut operates an OSHA-approved state plan covering state and local government workers, Connecticut must adopt the ETS or a mandate at least as strict as the ETS.
Public employers' compliance deadlines will run from the date of adoption of Connecticut's mandate.
- Two compliance options.
If a covered employer already has a mandatory vaccine policy that complies with the ETS, nothing further is required.
If not, the covered employer must either (1) institute a mandatory policy on vaccination; or (2) institute a policy requiring employees who are not fully vaccinated to undergo weekly COVID-19 testing and wear a face covering at the workplace. Employers do not need to pay for the weekly testing.
- Exempt employees.
The ETS exempts certain employees from the vaccination mandate, including: Employees who do not report to a workplace or work remotely, and employees who work exclusively outdoors;
Employees with a reasonable accommodation due to a disability or a sincerely held religious belief; and Employees who cannot be vaccinated due to medical reasons.
- New leave rights
Employers must provide up to four hours paid time off, including travel time, at the employee's regular rate of pay for an employee to be vaccinated.
Employers must provide "reasonable" time and paid sick leave for employees to recover from any side effects following the vaccine.
- Face coverings
Unvaccinated employees must wear face coverings indoors and in crowded outdoor areas, except in a closed office, for identification purposes, while eating or drinking, or while wearing a respirator.
Face coverings are not required for fully vaccinated employees, but may be required by state and local governments or employers.
- Enforcement obligations
Employers must ensure that: Unvaccinated employees wear appropriate face coverings in the workplace; Unvaccinated employees get tested once every seven days regardless of the individual's work schedule and provide documentation of results; and Work-related COVID-19 hospitalizations and fatalities are reported to OSHA.
- Notification requirements
Employers must inform all employees about the employer's vaccination policy; the efficacy, safety, and benefits of vaccination; prohibitions on retaliation; and prohibitions on making a false statement (such as knowingly providing false information regarding vaccination status or test results).
Employers can choose how to disseminate this information, such as via mass email, printed materials, or posting in the office.
- Penalties
The ETS does not contain any specific penalty provisions or fines for non-compliance.
OSHA has stated that it will enforce the ETS through its standard inspection and investigation process, which includes penalties of $13,653 per violation and up to $132,532 for willful or repeated violations.
Due to these recent developments, employers must determine whether they are covered by the ETS, if they are already in compliance, and, if not, what steps they need to take to become compliant.
With infection rates rising and the ETS's deadlines approaching quickly, employers should prioritize compliance to ensure that they do not become the target of OSHA enforcement.
Originally published in the Hartford Business Journal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
