Less Carrot, More Stick

OSHA’s COVID-19 Vaccine Mandate and the Emergency Temporary Standard

The Occupational Safety and Health Administration (“OSHA”) recently issued an Emergency Temporary Standard (“ETS”) requiring private employers with at least 100 employees to mandate the COVID-19 vaccine as a condition of employment. A variety of information regarding the newly issued ETS can be found on OSHA’s website here.

In short, the ETS requires covered employers to establish, implement, and enforce a written mandatory vaccination policy, in the form of either a “hard” or “soft” mandate. The hard mandate requires all employees to be vaccinated, but still allows for limited exceptions due to disability or religion. Under a hard mandate, employees who elect to remain unvaccinated (and do not qualify for an exception) will be subject to termination. The soft mandate, meanwhile, allows unvaccinated employees to remain employed (even in the absence of a disability- or religious-based exception), so long as they: (1) wear a mask or face covering in the workplace; and (2) get tested for COVID-19 and provide documentation of the results to their employer every seven days. Fortunately, employers do not have to start from scratch when developing a written mandatory vaccination policy. OSHA provides two templates that can be used as a starting point. The “hard” mandate policy template can be found here, and the “soft” mandate policy template can be found here.

The ETS is effective November 5, 2021. However, employers are given 30 days (i.e., until Sunday, December 5, 2021) to ensure their compliance with all non-testing requirements and 60 days (i.e., until Tuesday, January 4, 2022) to comply with the testing requirements for those employees who elect to remain unvaccinated (i.e., in the case of a “soft” mandate). There are a variety of legal challenges that have been launched against the ETS, and whether (or to what extent) it will be upheld in court remains to be seen. Nevertheless, given the tight turnaround and substantial monetary penalties for non-compliance (we’re talking $13,653 per violation, and up to ten times(!!) that amount for willful or repeated violations), it behooves all employers to get started with their compliance efforts as soon as possible.

By December 5, 2021, employers subject to the ETS should ensure full compliance with the following:

1. Implement and distribute a written mandatory vaccine policy. As noted above, this written policy can (and should) take the form of either the “hard” or “soft” mandate templates provided by OSHA.
2. Provide employees with certain identified information. The ETS lists four different categories of information that must be provided to employees, including the written mandatory vaccination policy, a CDC document regarding the vaccine (found here), OSHA’s anti-retaliation provision, and the criminal penalties associated with knowingly supplying false statements or documentation.
3. Determine the vaccination status of all employees. The ETS provides a list of ways to prove vaccination status. Further, if an employer has already determined the vaccination status of some (or all of) its employees prior to the effective date of the ETS, and has documentation supporting that determination, there is no need to “re-ask” those employees again.
4. Require all non-vaccinated employees (including those who are not yet “fully vaccinated”) to wear masks while indoors or when occupying a vehicle with another person for work purposes. Notably, while employers can choose to do so, the ETS expressly states that employers are not required to pay for any costs associated with this face covering requirement.
5. Be ready to provide (a little bit of) paid leave! The ETS requires employers to provide employees with up to four hours of paid time to get the vaccine. Employers must also provide “reasonable sick time and paid sick leave” (a term that is, unfortunately, not defined) if an employee must take time to recover from any adverse side effects of the vaccine.
6. Immediately remove any employee who is diagnosed with and/or tests positive for COVID-19, regardless of vaccination status. The employee must remain away from the workplace until he/she submits the requisite proof of a negative test and/or meets the CDC’s return-to-work criteria.
7. Report work-related COVID-19 fatalities and hospitalizations to OSHA. Of course, whether the illness is “work-related” can sometimes be difficult to determine.
8. Get those filing cabinets prepped! Obviously, OSHA isn’t going to take your word for it, so these new obligations must be properly documented and recorded, particularly as it relates to vaccination status and (if you take the “soft” mandate route) the test results that non-vaccinated employees, starting January 4, 2022, are required to provide on a weekly basis.

By January 4, 2022, unvaccinated employees (of the employers who chose the “soft” mandate) must begin providing documentation of their most recent COVID-19 test result on a weekly basis. Significantly, and similar to the masking requirement, the ETS expressly notes that employers are “not require[d] … to pay for any costs associated with testing[.]” As such, testing is likely a cost that can be shifted to the employees who choose to remain unvaccinated.

There is a good deal more to unpack, and we know that employers will have many more questions, some potentially unique to their own situations. The Labor and Employment team at Pillar+Aught is here whenever you need us!!