BIG ANNOUNCEMENT TODAY: Vaccine Mandates and More for Employers With 100+ Employees

The much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) promulgated by the federal Occupational Safety and Health Administration (OSHA) has just been released. Covering 84 million Americans, this is set to be the Biden administration’s big push to get as many in the country vaccinated against COVID-19 beyond the approximately 70 percent of adults who have already received the jab.

Here is the quick and dirty. Under the new federal ETS, employers with 100 or more employees (referred to as “covered employers”) must do the following:

  • Get Their Employees Vaccinated by January 4, 2022, and Require Unvaccinated Employees to Produce a Negative Test on at Least a Weekly Basis: All covered employers must ensure that their employees are fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4th. After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS lays out the wide variety of tests that comply with the standard and does not require employers to provide or pay for tests. Employers may be required to pay for testing because of other laws or collective bargaining agreements.
  • Pay Employees for the Time it Takes to Get Vaccinated: All covered employers are required to pay their employees for the time it takes to get vaccinated (up to four hours of paid time, to receive each vaccination dose) and, if needed, sick leave to recover from any vaccine side effects that prevent them from working.
  • Ensure All Unvaccinated Employees are Masked: All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
  • Reporting and Recordkeeping Requirements and Compliance Date: Employers are subject to requirements for reporting and recordkeeping that are spelled out in the detailed OSHA materials.
    • An employee or anyone with written authorized consent from the employee is entitled to his or her COVID-19 vaccination records and test results, which the employer must provide by the end of the next business day following the request.
    • Within four hours of a request from OSHA, the employer must provide a copy of the written COVID-19 policy requiring vaccination or requiring vaccination and testing and vaccination and testing records for each employee.
    • Any other written records required by the ETS must be produced to OSHA by the end of the next business day following the request.
    • Although the testing requirement for unvaccinated workers will begin after January 4th, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on December 5th.
  • Information Provided to Employees: The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Certain Employees of Covered Employers Not Subject to the Requirements: The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.
  • Who is a Covered Employer: In general, the ETS applies to all employers of 100 or more employees as of November 5, 2021, that are under OSHA’s authority and jurisdiction. Employees who are not subject to the requirements (mentioned above) are still counted in determining the size of the workforce. However, employees of a farm labor contractor or staffing agency are not counted for purposes of determining the size of the host company (e.g., the grower), but are counted as employees of the FLC or staffing agency.
  • Noncompliance: Covered employers who are found to be willfully noncompliant with the ETS mandate could face fines of up to $14,000 per violation, with the potential for business being cited multiple times.
States such as California with its own federally approved workplace safety agency have up to 30 days to adopt parallel measures that are “at least as effective” as the federal standard. It remains to be seen whether California will proceed with enforcement along the same timelines as described above although Cal/OSHA staff have already expressed their intent to basically copy the text of the federal ETS into a California vaccine emergency regulation with few if any changes and will likely try to match the federal timeline as closely as possible to maintain the same compliance dates. Thus, the federal language, though not directly applicable to California at present, is a fairly clear prediction of what will soon come from Cal/OSHA. The Cal/OSHA Standards Board will likely vote on the draft vaccine emergency regulation at the November 18th meeting, or at an emergency meeting soon thereafter, and the standard would go into effect by early December. This means that California employers should start preparing now.

Stay tuned for an update in a future article on specifics for California employers once Cal/OSHA announces the timelines for compliance.  If you need assistance with this new standard, contact McKague Rosasco LLP
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