In September of 2021, President Biden announced a new mandate for all employers with 100 or more employees to require either vaccination or weekly testing and use of face masks for all of their employees. The mandate was issued under the authority of the United States Occupational Safety and Health Administration’s (“OSHA”) right to take certain actions in emergency situations.
As a result, dozens of lawsuits have already been filed seeking to delay and/or overturn the mandate. At least one court has already issued a stay on the enforcement of the mandate pending a final determination.
On November 4, 2021, OSHA issued an Emergency Temporary Standard (ETS”) which sets forth rules and requirements related to this mandate. The ETS specifies that the mandate applies to employers with 100 or more employees total – meaning, that even if the employer has 10 employees at 10 different locations, the rules still apply to them. Part-time, seasonal, and full-time employees all get counted towards the total number of employees. Staffing agencies would still count all jointly-employed employees. However, independent contractors are not counted towards this total.
These rules also include the requirement that by December 5, 2021, all covered employers must: determine the vaccination status of their employees; obtain proof of vaccination and maintain records regarding vaccination statuses; require employees to provide immediate notice of any positive Covid-19 test or diagnosis; ensure that unvaccinated employees wear face coverings while indoors or in vehicles with others; provide employees with information about the requirements and policies for vaccination and covid safety measures; and report any work-related Covid-10 fatalities to OSHA within 8 hours and work-related Covid-19 hospitalizations within 24 hours.
Then, beginning on January 4, 2022, covered employers must put vaccine and/or testing mandates in place. Employers must then put into effect their policies regarding vaccination and/or testing. Employers may either mandate that all employees are vaccinated, or mandate either vaccination or weekly testing and face coverings. Employers must use either OSHA’s vaccine mandate policy sample or OSHA’s vaccine or testing mandate policy sample. However medical facilities and providers which receive money from Medicare or Medicaid will not have the testing option; they must have a vaccination mandate in place.
If an employee works entirely from home/remotely, then the employer may exclude that employee from the vaccine and/or testing requirements. The employer is also permitted to allow exemptions for medical reasons or sincerely held religious beliefs and/or observances. Without one of these exemptions, an employer is most likely permitted to discipline and/or terminate an employee for refusing to comply with the policy. Moreover, an employer must still require a person exempted for religious or medical reasons to be tested weekly and wear face masks (unless their medical reason or religion prohibits testing as well.)
Employers are required to provide non-exempt (hourly) employees with up to four hours of paid time off for vaccinations obtained during work hours at the employee’s regular rate of pay. The employer cannot use the employee’s available paid or sick leave benefits for this. However, employers are not required to pay for travel or other costs related to obtaining the vaccine. Employers are also required to compensate employees for a reasonable amount of time to recover from any side effects from the vaccine. This time may be deducted from available sick time or paid time off, but may not be deducted from vacation time and must be provided even if no sick or PTO time is available. Employers are generally not required to pay for weekly covid testing.
Violations of these rules are expected to face penalties of $14,000 per violation. However, since OSHA has limited employees and resources, it is hard to anticipate how active they will be in enforcing these fines.
Again, this is still an evolving area in which dates, regulations, or interpretations may change as courts are just beginning to review and address this new mandate. The attorneys at McLaughlin & Nardi, LLC are experienced with employment laws, and will continue to monitor the situation so that we can advise both employers and employees about their rights and responsibilities under these new federal mandates. To learn more about what we may be able to do to help, please contact us by e-mail or telephone at (973) 890-0004.