WARNING: You might be subject to the OSHA mandate even if you're not
It's really complicated. You might think you're exempt, but you may not be. Also, don't count on the courts to save you.
The object of President Biden’s OSHA Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing is pain. If you’re already fully vaccinated, then the pain isn’t directed at you, but you might feel it anyway.
If you are an employer with 100 or more employees, at all locations, you will be part of the new national mandate, with some important exceptions. First, if your company is already subject to Biden’s executive order requiring vaccination for federal contractors, then you don’t also have to comply with the OSHA ETS. Second, if your company’s employees are leased through an agency, the agency is on the hook, not you—but that can work to your disadvantage too. Third, if your employees exclusively work remotely, and never come in to the office or work physically with clients, then you’re also exempt. Fourth, if your employees all work outside (like construction or landscaping), you’re exempt.
The exemptions have some caveats. If you are a company with less than 100 employees, but you lease your employees from an agency that employs more than 100, then your leased employees will be subject to the OSHA ETS. If your company is subject to the ETS and your employees work remotely at client sites, where the client companies are not subject to the ETS, your employees still are.
It’s complicated, and even the lawyers are running circles trying to figure out all the permutations.
OSHA has conveniently provided some templates to help companies comply. One of the more ominous “fact sheets” deals with penalties for providing false information. Basically, if your company is subject to the mandate, and you cheat or falsify records, (if you run the company) you’re subject to a large fine or federal prison. Again, pain.
Employers who are covered under the ETS that refuse to comply are subject to a fine of $13,653 “per violation.” The lawyers I heard from don’t know how that might be interpreted by the federal government, but the most painful interpretation should be assumed.
Here’s what companies specifically have to do and by when, if the ETS survives court challenges. By December 6, companies subject to the ETS have to:
Make a roster of all vaccinated and unvaccinated employees. This means collecting everyone’s vaccination card if they have one. If the employee doesn’t have a card, an attestation (under penalty of law as described above—hence the “fact sheet” for false information) will do. There is no exception for employees who have had positive antibody tests (unacceptable) or had COVID-19 in the past.
Keep a record of the vaccination cards. The vaccination cards are not protected under HIPAA health privacy rules. They are protected under the Americans with Disabilities Act (ADA). That means employers have keep them stored separately from other HR records and limit who can see the vaccination records. Plenty of HR and healthcare companies have popped up services to handle this administrative task (at a cost, of course).
Choose whether the company will enforce a 100% vaccination mandate (for employees who are not exempt given the rules above), or allow for unvaccinated employees to work under specific requirements.
Implement a policy based on the choice.
Implement a vaccination paid-time off policy. Companies must give four (4) hours of paid leave to any employee who gets a vaccination shot, for each shot. For the mRNA vaccines, that’s 8 hours total, and companies may not charge that against existing PTO balances. Companies must give at least two (2) days of sick leave for employees to recover from side-effects of vaccination. If the company offers sick leave, the time may be charged against accrued sick time, but not against vacation time. If the company offers a single pot of PTO, it can be charged against the PTO. However, if the employee doesn’t have enough PTO or sick time, the company has to give them the paid time and can’t take it from future accruals.
Number 5 above is subject to state laws, union contracts and other regulations. Some states have specific rules about sick time. Get ready for employees to use up all their sick time, then claim they are sick from the vaccine to get two more days—for each shot. It’s funny how people will take advantage.
If companies choose to allow unvaccinated employees to work at a covered workplace (again, your workplace might be covered if you lease your employees from a large employer), or if your company is covered but your employees work at an uncovered workplace, either one: Your unvaccinated employees must wear a face mask at all times while at work, and your employees must agree to be tested every seven days for COVID-19.
The ETS goes into excruciating detail on face coverings. Be assured that if this standard goes into effect, your company will make unvaccinated employees wear an approved mask (not a piece of cloth), and wear it over the nose and mouth (none of this wearing it under the chin). If not, then the company will not be in compliance, and if the inspectors show up—or if a disgruntled employee blows the whistle, get ready for a violation.
The testing requirement doesn’t go into effect until January 4, 2022. However, in states that have their own COVID-19 standards (Virginia, for example), this requirement will be delayed another 30 days, and companies will be subject to the state rules, as long as they are at least as stringent as the federal rules. It’s unclear what happens in Texas, where mask mandates are banned.
If your company has multiple offices, with one in, say, Georgia and one in a state with its own standards, and the OSHA ETS survives court challenges, then it’s possible your unvaccinated employees in Georgia will need to be tested sooner than the ones in other states, because of the 30 day delay. This tangle of spaghetti law is going to drive HR professionals, labor lawyers and company CEOs up a wall.
As for testing, by January 6th (again, subject to state rules and delays), companies that choose to allow unvaccinated workers must:
Arrange for weekly (or every seven days) testing.
Arrange for collecting the test results. Self-administered at-home tests are permitted, as long as the company or a telehealth professional “proctors” the test and reading the results. In other words, the employee has to get on a Zoom call with someone from the company and test in front of the camera, and then have the results available to show to the proctor. Or companies will have to send employees to a testing location; or companies will have to arrange on-site testing at company facilities.
Companies will have to figure out who pays for the testing. Companies are allowed to pass the cost of testing to employees, but it’s unclear how that can work, because many states have laws dealing with minimum wage. If, for example, the testing is $45 per week, and the employee doesn’t work enough hours (part-time fast food for instance), then the employer may not be able to withhold the fee.
Companies must keep records of the testing.
Employees with a sincere religious or medical reason not to get vaccinated must be accommodated. Watch for companies handing out sheets of religious exemptions, and you can bet the “fact sheet” on cheating will somehow rise to the surface as OSHA inspectors find someone to make an example of.
As far as the lawyers I’ve heard from know, there is no exemption on the testing side. Everyone who is unvaccinated has to get tested or they don’t get to come to work. Again, you might think you’re not under the OSHA ETS, but if you are an employee who works for a company that leases you from another employment agency, you might find yourself getting tested weekly.
Now what about the Fifth Circuit Court of Appeals? Didn’t they issue a stay on the ETS? Yes, they did. Twenty-six states (to date) filed a lawsuit to stop the OSHA mandate, claiming that it violates the 10th Amendment and the Commerce Clause of the U.S. Constitution. They claim that COVID-19 is no longer a “grave danger” and therefore OSHA is overstepping its authority.
They also argue that OSHA is making dubious scientific claims about “natural immunity.”
The takeaway: Don’t count on the courts to save you here. A stay can be lifted at any time. Here’s what the National Law Review recommends:
While the ETS is stayed, employers do not have to comply with its terms. However, that stay could be lifted by the Fifth Circuit or the Circuit that gets the consolidated cases for review on the merits. Once the stay is lifted, employers will have to comply with the terms of the ETS, but compliance deadlines should be tolled during the stay. Historically, though, stays of previous OSHA emergency temporary standards have remained in place pending resolution on the merits.
The Biden White House is confident that at least some of the ETS will survive a court challenge. It’s almost certain that the ETS will end up with the Supreme Court, but during that journey, at least the mask mandate, vaccination roster, and PTO for vaccinations may go into effect. This by itself will burden employers, but again, the whole point of the ETS is pain.
The easiest path for employers is supposed to be to require all employees to be vaccinated. Even if you work for a small employer, if you are a leased employee, this might apply to you. It’s unclear what happens if you refuse the vaccine. I suppose the Biden administration expects your employer to just let you go.
But again, pain is the whole point of this exercise. OSHA has made it very painful.
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