The OSHA Emergency Temporary Standards (ETS) for the federal vaccine mandate were released on November 5th. Under these new regulations, employers who have one hundred or more employees are required to do the following:
Create a Written Policy on Vaccines for OSHA Review.
The two choices in this policy per the ETS are to require all employees to be vaccinated or do not require vaccines but then require weekly negative test results and mask-wearing (while at the workplace) for those who choose not to be vaccinated.
Note: Employers are not required to pay for testing or face coverings. However, there are local resources available for group testing, etc. Please reach out to the NACC for more information.
Obtain Acceptable Proof of Vaccination Status from Each Employee.
These records are to be maintained and open for OSHA review. Employers must provide up to four hours of paid time off to workers to get vaccinated and to allow for paid leave to recover from any side effects experienced following each primary vaccination dose. Employers may not require employees to use personal time or sick leave to get vaccinated.
Also included in the ETS are health protocols when an employee tests positive for COVID. However, regardless of vaccine status, the ETS does not require employers to provide paid time off during the required time away from the workplace should an employee test positive.
How to Determine Employee Count?
Employee counts are “firm or company-wide” i.e., company not location. Franchises will be considered separately, BUT cumulatively for an individual company holding several franchise locations – and provides options for compliance. Employers must include all employees across all their U.S. workplaces, regardless of employees’ vaccination status or where they perform their work. Part-time employees and temporary and seasonal workers do count toward the total number of employees if they are employed while the regulations are in effect.
Vaccination status is not considered when counting the numbers of employees. For example, if an employer has two hundred employees, all of whom are vaccinated – that employer would be covered.
Employer penalties for non-compliance with OSHA’s rule could include fines based on the number of violations and range up to $13,653 for a single violation. Fines up to $136,532 may be imposed for employers who willfully violate standards. However, depending on the version of the federal budget bill that gets passed, these set fines could be increased exponentially. OSHA officials state they plan to conduct regular inspections.
While this mandate is being challenged in courts, employers should be prepared to comply with the OSHA ETS until the court rulings on the legalities of these mandates are identified. According to OSHA officials, these regulations will be in effect for six months and OSHA will continue to monitor trends in COVID-19 cases in making this determination.
Resources for More Detailed Information:
- For the U.S. Department of Labor FAQ go to https://www.osha.gov/coronavirus/ets2/faqs
- For the Federal Register of OSHA Regulations go to https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard
Please reach out if you have questions or need more information to Reba Morgan Osborne, Director of Government Affairs