Author: Becky Canary-King
The Biden administration has finally released its long-awaited emergency temporary standard (“ETS”) on mandatory vaccination requirements in the workplace. As anticipated, the ETS requires that employers with 100 or more employees either establish a mandatory vaccination policy or a vaccination/testing policy.
It’s important to note that the ETS is going to be challenged in court – so while employers should certainly get started in preparing for the new requirements, their future is uncertain.
In the meantime, here are answers to the key questions that employers need to know:
Are employers required to mandate vaccines?
No. Under the ETS, employers with 100 or more employees must either establish a mandatory vaccination policy or establish a policy under which employees must choose either to be fully vaccinated or provide proof of regular testing and wear a face mask in the workplace. The vaccination/testing policy must be implemented by January 4, 2022.
How do employers determine whether they are covered?
The ETS covers all private employers with 100 or more employees. To determine the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees count towards the company total, but independent contractors do not.
We anticipate questions regarding whether related companies’ will be considered the same or separate for purposes of counting to 100 employees, but we have not yet received specific guidance on this question. In the meantime, we will need to look at the facts and circumstances and tests under other employment laws (such as the FMLA) to determine whether affiliated companies’ headcounts need to be aggregated.
Which employees are covered?
The ETS generally covers all employees of covered employers except those who (1) do not report to a workplace where other individuals such as coworkers or customers are present, (2) work from home, or (3) work exclusively outdoors. These employees still count toward the 100-employee threshold, though.
What is required for a mandatory vaccination policy?
A mandatory vaccination policy must require vaccination of all covered employees, including vaccination of all new employees as soon as practicable, other than those employees for whom a vaccine is medically contraindicated or who are legally entitled to a reasonable accommodation under federal law.
What is required for employees who get vaccinated?
The ETS requires employers to support vaccination by providing employees four hours’ paid time off at the employee’s regular rate of pay to receive the vaccine (covering both travel time and the actual time receiving the vaccine). Employers must also provide reasonable time and paid sick leave to recover from side effects following each vaccination dose. This requirement is effective immediately.
Are employers required to pay for testing?
The ETS does not require an employer to pay for the costs associated with testing. However, payment for testing may be required by other laws, regulations, or collective bargaining agreements.
When is the deadline to comply?
Covered employers have until January 4, 2022 to ensure their covered employees are fully vaccinated or submit to weekly testing. Beginning December 5, 2021, covered employers must ensure that unvaccinated employees wear masks in the workplace.
If you have any other questions regarding OSHA COVID requirements or other COVID-related issues, a member of our Labor & Employment Group would be happy to speak with you.