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November 8, 2021

U.S. Companies With 100 Or More Employees Must Require Employees To Get Vaccinated

According to a new Occupational Safety and Health Administration (OSHA) rule released last week, by January 4, 2022 U.S. companies with 100 or more employees must require COVID-19 vaccinations for their workers or insist that employees do regular testing.

Before the vaccination requirement hits next year, employers must assess and record the vaccine status of every member of their workforce. That work must be completed by December 5, 2021.

Importantly, this rule applies to any employer that has 100 or more workers at any time. For example, if an employer is below 100 employees currently, but plans to hire seasonal employees that eventually will bring workforce numbers to 100 or above, it is subject to this rule. Part-time employees count as part of the 100 while independent contractors do not.

The rule also requires that employers provide four hours of paid time off for workers to get vaccinated. These hours cannot count against any annual paid leave employees receive. Employers also must offer two days of paid leave to recover from the vaccine. This time may count against employees’ annual leave time.

If employees refuse to get vaccinated, employers may offer an option for employees to be tested weekly for COVID-19. Importantly, employers do not have to offer a testing option. Additionally, in general employers are not required to pay for employees’ tests, but they may be required to pay for testing to comply with other laws and regulations, including the Americans with Disabilities Act, or collective bargaining agreements. Private, at home tests are not sufficient to fulfill the testing requirement. Employees must submit official results from a lab.

Record-keeping will be essential as OSHA reviews employer compliance. OSHA is likely to work with employers who are making a good faith effort to comply with the rule, but it also will take violations seriously. OSHA will have programmed or planned inspections to check that an employer is in compliance. Penalties for noncompliance can range from $13,653 per serious violation to $136,532 if a company willfully violates the rules.

MSCI affiliate member Optimum Safety Management has explained the Emergency Temporary Standard (ETS) here. As a reminder, MSCI members can ask questions via Optimum Safety’s SAFETYHelpline.

Attorneys general from 26 states already have pledged to challenge the rule and, over the weekend, an appeals court temporarily suspended the rule. To prepare for upcoming deadlines, however, companies should proceed as if this rule will survive the legal challenges.

As a U.S. Chamber of Commerce fact sheet and webinar explained, the ETS mandates that employers:

  • Communicate to employees by December 5, 2021 how the organization will comply with this rule and the employees’ rights and duties under it. Four documents must be included in these communications. Employers can find these documents here, here, here, and here. Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status. Employers should begin this process now because this step must be complete by December 5, 2021.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status.
  • Ensure each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if the employee is in the workplace at least once a week) or within seven days before returning to work (if the employee is away from the workplace for a week or longer).
  • By December 5, ensure that employees who have not been fully vaccinated wear a face covering when indoors or when occupying a vehicle with another person for work purposes.

Employers are also not required to pay for face coverings.

This rule will cover approximately 84 million employees nationwide. The rules do not apply to people who work remotely (meaning they never see fellow employees, customers, or clients), work in an environment with no other employees, or who work exclusively outdoors. Workers can also receive exemptions based on religious beliefs, disabilities, and medical conditions. Other detailed explanations of the rule are available here, here, here, and here.

The ETS will be in place for six months, after which OSHA must either rescind or replace it. To help inform that decision, OSHA is taking comments from the public. Comments can be submitted electronically at regulations.gov. Use OSHA’s fact sheet to learn more about the process. Additional OSHA fact sheets, FAQs, and compliance assistance materials are available at osha.gov/vaxETS.

In related news, the Safer Federal Workforce Task Force released new guidance on the U.S. government’s federal contractor vaccine mandate. The new guidance addresses requests for accommodations, applicability to corporate affiliates, and recommendations for enforcement and compliance. Importantly for employers facing challenges to compliance, the guidance emphasizes flexibility: where covered contractors are working in “good faith” to comply (i.e. communicating requirements to employees, gathering metrics to determine who is vaccinated, and focusing on counseling and education of the unvaccinated), contracts will not be terminated.

Find more information here.

The rule for federal contractors, which will go into effect on January 4, 2022, is already being challenged in court by at least 19 states in four separate lawsuits. Stay tuned to Connecting the Dots as these lawsuits make their way through courts and as these rules are implemented. MSCI will hold a free webinar exclusively for members this week. Keep an eye on inboxes for an invitation.