BREAKING NEWS: U.S. Department of Labor Issues Vaccination Requirement for All Employers With 100+ Employees

On November 4, 2021, the United States Department of Labor, Occupational Safety and Health Administration (OSHA) issued its long-awaited COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) which will require all employers (nationwide) with 100 or more employees (i.e., “covered employers”) to do the following:

1) Require employees to become fully-vaccinated on or before January 4, 2022; OR,

2) Require unvaccinated employees to produce a negative test on at least a weekly basis, and wear masks while indoors.

OSHA supports its authority to set forth such a regulation and mandate, based upon a finding that the pandemic spread of the virus poses a “grave danger” to employees, as that term is defined in in the Occupational Safety and Health Act of 1970 (as amended) Specifically, the ETS provides: “[t]he existence of a grave danger to employees from SARS-CoV-2 is further supported by the toll the pandemic has already taken on the nation as a whole and the number of workers who remain unvaccinated.”

Definition of Fully-Vaccinated

As part of the 490 pages of regulations, which can be found here, all covered employers must ensure that their employees have received the necessary shots to be fully vaccinated – which is defined as either two doses of the Pfizer-BioNTech or Moderna vaccines, or one dose of Johnson & Johnson – no later than January 4th. Employees who elect not to comply with the mandate, and who are not subject to accommodation (discussed below), will become subject to discipline, up to and including termination of employment.

Accommodations for Unvaccinated Employees

For those employees who seek a reasonable accommodation from the employer’s vaccine mandate, which must be based upon a physician-confirmed disability and/or sincerely held religious belief, the regulations require the employer to mandate all employees to undergo weekly testing, to confirm negative status. The ETS does not require employers to provide or pay for tests, as such, the costs/burden of testing falls upon the unvaccinated employee.

All covered employers must also ensure that unvaccinated employees wear a face mask while in the workplace at all times.

Under these new regulations, covered employers must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS lays out the wide variety of tests that comply with the standard.

The “Loophole”?

It would appear that OSHA left open an option for covered employers who elect NOT to mandate vaccinations to allow for testing: “The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.” More information is needed on this potential loophole, but it would appear that there is an option for employers to effectively “opt-out” of the mandate by creating and enforcing a testing and masking protocol. Stand by for more information on this issue.

Paid Time Off Requirement

The ETS requires employers to support employees seeking vaccination by providing employees up to four hours of paid time off, to receive each vaccination dose, and “reasonable time” as paid sick leave to recover from side effects experienced following each dose. The regulations are unclear on what a “reasonable time” would be for the requisite time off for those side effects.

Exemption Issues

OSHA has specifically exempted from the vaccination requirement, those individuals deemed to be outside of the “grave danger” determination which leads to this requirement. Among the individuals specifically exempted:

(a) workers who do not come into contact with others for work purposes (e.g. telework, work-from-home, single-person operations without interaction with customer/clients/patients);

(b) workers who exclusively work outdoors; and,

(c) healthcare workers (as they are governed by Healthcare ETS (86 FR 32376).

Interestingly, as part of their analysis of who does NOT fall within the “grave danger” determination, OSHA addresses those individuals who were previously infected with the SARS-CoV-2 virus, indicating that they, too, are not in “grave danger”, but stopping short of exempting those employees from the vaccine mandate. Specifically, the regulation provides: “OSHA finds that there is insufficient evidence to allow the agency to consider infection-acquired immunity to allay the grave danger of exposure to, and reinfection from, SARS-CoV-2” (Section V, d.)

The ETS also specifically noted the right of federal pre-emption on this mandate – meaning that aby state or local governmental agencies cannot restrict or limit these regulations for businesses within their jurisdictions.

Reporting and Notice Requirements

Among the new reporting requirements. the ETS requires employers to report work-related COVID-19 fatalities to OSHA within eight (8) hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines” found here; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Employers are also subject to other various requirements for reporting and recordkeeping that are spelled out in the detailed OSHA materials.

It is important to note that, while the testing requirement for unvaccinated workers will begin after January 4th, employers must comply with all other requirements (e.g. providing paid-time for employees to become vaccinated) – beginning on December 5th. For an easy overview of these additional requirements, OSHA has published a summary here.

Penalties for Non-compliance

As with any other OSHA-related violation, the penalties for non-compliance can be quite steep

• $134,494 per violation deemed to be “willful and repeated”
• $13,653 per violation for “serious and other-than-serious” actions,; and
• $13,653 per day for failure-to-abate violations.

Consequently, the costs of non-compliance are quite steep and should be taken very seriously!

Smaller Employers (<100 employees)

Before business owners with fewer than 100 employees get too excited about not being subject to these requirements, it should be noted that the DOL has already set the stage for smaller employer mandates: “The agency is moving in a stepwise fashion on the short timeline necessitated by the danger presented by COVID-19 while soliciting stakeholder comment and additional information to determine whether to adjust the scope of the ETS to address smaller employers in the future.” (Section I.B.1).

Legal Challenges

One day prior to OSHA issuing the ETS, Senate Republicans announced a procedural challenge to the regulations under the Congressional Review Act — the official process for Congress to eliminate or modify an executive branch rule. Additionally, several large employer-backed organizations, and various state attorneys general have all declared that they were awaiting publication of the regulations, before launching various lawsuits challenging the Constitutionality of the proposed executive order. Stand by for further information on these challenges.

Conclusion

For the time being, employers around the country should begin making preparations for both the December 5 and January 4 compliance deadlines. As always, you should consult with competent legal counsel to obtain information and legal analysis specific to your business, before updating your business’ policies and procedures.