Earlier this month, the Occupational Safety and Health Administration (OSHA) issued Emergency Temporary Standard (ETS) guidelines that require companies of 100 or more employees to be either fully vaccinated or to participate in weekly testing and mandatory masking. The measure would impact over 84 million workers regardless of full-time or part-time status and put businesses at risk of a $14,000 fine (per violation) with failure to comply.
As of mid-November, 68% of Americans have at least one dose while almost 59% have been fully vaccinated, the CDC reports. Meanwhile, job listings requiring vaccinations have also increased, having doubled between September and October.
"In total, just 5% of unvaccinated workers said they left their job due to a COVID-19 vaccine mandate from their employer. "
While multiple lawsuits against the ETS are pending, employers are advised to prepare for compliance. Here’s what you need to know.
What is required under ETS?
- Beginning December 5th, unvaccinated employees must wear masks in work settings, while meeting with clients/customers, and while in a vehicle for work purposes
- By January 4th, employees must be fully vaccinated or begin weekly testing
- Employers must provide reasonable time off (up to 4 hours per vaccination) to non-exempt employees if receiving the vaccine during work hours (excludes boosters)
- ETS also requires that employees are provided PTO/sick leave to recover from side effects of the vaccine
- COVID-19 vaccination & weekly testing recordkeeping
How long will the ETS be put into place?
The ETS is set to expire in 6 months from November 5th, with a possibility for extension or the potential to become a permanent policy.
What are the current employee sentiments regarding vaccine mandates?
Just last month, Kaiser Family Foundation (KFF) released a survey reporting that 25% of workers said their employer has already required the COVID-19 vaccine while 37% of unvaccinated workers said they would quit their job if a mandate or weekly testing was required. In total, just 5% of unvaccinated workers said they left their job due to a COVID-19 vaccine mandate from their employer.
What is accepted as proof of vaccination?
Proof of vaccination includes an official vaccine card or a medical record showing vaccination that includes the employee’s name, vaccine type, date of inoculation, and the clinical site the vaccine was administered.
Who is exempt from the ETS?
- Remote workers who do not come into contact with co-workers or customers
- Independent contractors
- Employees who have a medical reason*
- Employees may be legally entitled to accommodations under federal civil rights laws due to a disability or religious reasons*
*must participate in weekly testing
What if an employee is primarily remote, but comes into the office periodically and/or is client-facing?
Remote employees who have interaction with persons for work-related purposes must show proof of vaccination or must be tested within 7 days prior to work-related interactions.
Do employees who have previously tested positive for COVID-19 have to comply with the new regulations?
Yes, regardless of prior infection, employees must provide proof of vaccination or participate in weekly testing.
If an employer has less than 100 people or is not covered by OSHA, can they still implement a vaccine mandate?
Yes, under the Equal Employment Opportunity Commission (EEOC), employers may mandate the COVID-19 vaccine and/or ask for proof of vaccination. They must however comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 requirements and provide reasonable accommodations. Exemptions include religiously held beliefs, medical restrictions, and persons with disabilities. Check out our previous blog for more on the legal factors.
Is asking for vaccination status a violation of HIPAA?
No, HIPAA only applies to certain entities such as healthcare providers and insurance companies who are not allowed to disclose vaccine status without your consent.
How should organizations prepare for the ETS?
- Create and communicate the new policy to employees
- Prepare to collect vaccination information
- Prepare mandatory testing resources for non-vaccinated employees
- Prepare to receive exemption and accommodation requests
- Create and maintain a system of record-keeping for weekly testing tracking
- Implement an in-office mask policy for those unvaccinated
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