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FOS’s September 10, 2021 Client Alert, “President Biden Announces Additional COVID-19 Vaccination Requirement” described the President’s declaration of broad vaccination requirements on employers and businesses doing business with the federal government.

While few details were released in September, we knew that employers with 100 or more employees would be required to have a fully vaccinated workforce or require that unvaccinated employees produce weekly negative test results and wear face coverings. The Department of Labor’s Occupational Safety and Health Administration (OSHA) was tasked with developing an Emergency Temporary Standard to implement the vaccination and testing requirements, and large employers have anxiously been awaiting its rollout.

The long wait for details is over, as OSHA issued its Emergency Temporary Standard.  These new rules, which will affect two-thirds of the country’s private-sector workers, are premised on a finding by OSHA that employees’ occupational exposure to the virus that causes COVID-19 is a “grave danger” to unvaccinated employees, requiring immediate protective action.

What is Required?

Covered employers must develop, implement, and enforce a written, mandatory COVID-19 vaccination policy; or, in lieu of a vaccination requirement, a policy requiring employees to undergo weekly COVID-19 testing and wear a face covering at work. Of these two alternatives, the rules “strongly encourage” mandatory vaccination programs, and again “strongly encourage” employees to be vaccinated even where testing is allowed.  Employers must comply by January 4, 2022, and unvaccinated employees will be required to wear a face covering at work beginning December 5, 2021.

Who is Covered?

The new rule generally applies to employers with 100 or more employees (full-time or part-time) at any time the rule is in effect. The threshold figure is determined on a company-wide, not worksite by worksite, basis. All employees are included in the totals, whether or not they report to an office or work from home.  Independent contractors are not included in the employee totals. The threshold number is determined regardless of employees’ vaccination status or where they perform their work (though, note, vaccination is not necessarily required for remote employees, as discussed further below).  Once an employer becomes subject to the rule, it remains subject to it, even if the employer’s workforce numbers fluctuate.

Two or more related entities may be regarded as a single employer for the purposes of OSHA if they handle safety matters as one company, in which case the employees of all entities making up the integrated “single employer” must be counted.

Federal contractors and subcontractors, as well as healthcare facilities accepting Medicare or Medicaid, are subject to their own COVID-19 workplace safety rules.

Who Pays for Vaccinations, Testing and Face Coverings?

Employers are required to provide employees with paid time off to become vaccinated and to deal with side effects.  However, employers are not required to cover testing costs or time off for employees choosing weekly testing in lieu of vaccination, or for face coverings for employees.  An employer, however, may choose to cover such costs.

Are All Employees Subject to These New Rules?

The new rule requirements do not apply to employees:

  1. who do not report to a workplace where other individuals such as coworkers or customers are present;
  2. while working from home; or
  3. who work exclusively outdoors.

This is consistent with recent Department of Labor officials’ comments that private, remote employees will not be subject to the vaccination/testing requirement unless they have direct contact with other individuals in the workplace.

What is a Mandatory Vaccination Policy?

A “mandatory vaccination policy” is an employer policy requiring each employee to be fully vaccinated. The policy must require the vaccination of all employees, including vaccination of all new employees as soon as practicable, other than those employees:

  1. for whom a vaccine is medically contraindicated; or
  2. for whom medical necessity requires a delay in vaccination; or
  3. who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

Can an Employer Have a Partial Mandatory Vaccination Policy, Applying to Only Part of its Workforce?

Yes. For example, a retail employer may choose to require vaccination of only employees working in stores, and to treat vaccination as optional for those who are working from corporate headquarters or who provide intermittent telework. However, those employees who are not required to be vaccinated must be subject to the alternative policy (vaccination or tests/masks).

Who Determines Whether an Employee is Vaccinated, and How is that Determination Made?

Employers must determine each employee’s vaccination status, including whether the employee is fully or partially vaccinated. Employers who have previously ascertained an employee’s vaccination status, such as in connection with a return-to-office plan, and have retained appropriate records, need not do further investigation.

For all other employees, employers must require each vaccinated employee to provide acceptable proof of vaccination status, including whether the employee is fully or partially vaccinated. The employer must treat any employee who does not provide one of the acceptable forms of proof of vaccination status as not fully vaccinated.

What About Partially Vaccinated Employees?

A partially vaccinated employee is not considered fully vaccinated. If an employer has adopted a policy allowing testing and face coverings, partially vaccinated employees must be tested weekly (and wear face coverings) until they are fully vaccinated.

Is a Specific Test Required for Unvaccinated Employees?

The rules allow the use of any FDA-approved test, administered according to approved, authorized instructions, which is not both self-administered and self-read (unless observed by the employer or an authorized telehealth proctor). Employers may select the testing scenario that is most appropriate for their workplace.

When do Unvaccinated Employees Have to Wear Face Coverings?

Employers must ensure that all employees who are not fully vaccinated wear a face covering when indoors and when occupying a vehicle with another person for work purposes, except:

  1. when alone in a room with floor to ceiling walls and a closed door;
  2. for a limited time while eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements;
  3. when wearing respirators or face masks in compliance with other OSHA or FDA provisions; or
  4. where the employer can show that the use of face coverings is infeasible or creates a greater hazard.

What Records Must the Employer Keep?

Employers must maintain records of each employee’s vaccination status and must preserve acceptable proof of vaccination for each partially or fully vaccinated employee. The employer must maintain a roster of each employee’s vaccination status.

Employers must also maintain a record of each test result provided by each employee or obtained during tests conducted by the employer.

These documents are considered to be employee medical records, must be maintained as such, and must not be disclosed except as required or authorized by the rule or other federal law. Employers, however, must provide, upon request by an employee, the aggregate number of fully vaccinated employees at a workplace, and the total number of employees at that workplace.

What Are the Penalties for Noncompliance?

The rules provide for enforcement actions against employers which do not comply with the requirements. Potential fines may run up to $13,653 per violation. In other words, if an employer subject to the rule has 10 unvaccinated employees who are not tested weekly, each week in which they are not tested is a separate violation as to each employee. Under these circumstances, it is easy to see how potential fines could quickly run into hundreds of thousands of dollars. Since OSHA is primarily focused on compliance, however, employers which unwittingly violate the Rule should be able to work with OSHA on this issue.

How Should Employers Prepare?

Given the recent conflicts over COVID-19 related mandates, legal challenges to the new rules may arise. Unless and until an applicable court order is issued which affects the rule’s implementation, employers should begin preparing now to be ready to comply and advise employees on any policy changes.

Affected employers should promptly communicate in writing with their employees regarding the rules and their impact on employer policies.  Affected employers should also draft, adopt and train employees on written policies for determining vaccination status, testing, confidentiality, etc.

In addition, now is a good time for all employers to review and, if appropriate, update their COVID-19 mitigation and safety policies. Employers without formal, written policies should create and implement them.

What About Employers with Less Than 100 Employees?

While the new rules only apply to employers with 100 or more employees, employers with less than 100 employees which contemplate or have issued their own COVID-19 vaccination rules should review the new rules for guidance. Patterning policies after the new rules might make them less open to legal challenge. This would particularly be true if legal challenges to the new rules are unsuccessful.

FOS anticipates that businesses and their employees will feel the effects of the COVID-19 pandemic for the foreseeable future. As it has since the pandemic began, FOS will continue to monitor pandemic-related legal issues as they arise and provide timely information to our clients through Client Alerts, social media posts, and newsletter articles. FOS can help employers draft, update, and provide training regarding these and other policies.

For a complete and continuing collection of Client Alerts dating back to the pandemic’s beginning, go to FOS’s News and Views page.

In the meantime, FOS stands ready to help our clients with any legal questions or issues you may have. Call, email, or text us. We’re here for you.

Be well.