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Vaccination mandates: what employers should expect in the next month

11/5/21

By: Justin Boron

The courts stepped in this weekend to enjoin the vaccination mandate regulation. But until it completes appellate review, employers are still on the clock with a December 5 deadline to meet the requirements of the the Emergency Temporary Standard announced November 4 by the Occupational Health and Safety Administration. If it overcomes the “grave statutory and constitutional issues” suggested by the Fifth Circuit Court of Appeals panel and survives judicial review, the ETS regulation will require most employers with 100 or more employees to meet a December 5 deadline to either (1) implement a mandatory vaccination policy or (2) create a policy allowing employees to choose to get a vaccination or wear a face-covering in the workplace and submit to weekly COVID-19 testing.

Although the regulation is being challenged in the courts, employers subject to the ETS should start planning for compliance in the event that the challenges fail. Affected employers will have to comply with most provisions of the ETS by December 5, 2021, and with its testing requirements by January 4, 2022.  The ETS also requires employers to collect and create records of vaccinations, produce certain records upon request, and enforce masking and other safety measures for unvaccinated employees. Below is a summary of the key elements of the ETS. Freeman Mathis & Gary’s employment attorneys are ready to assist you in fulfilling the ETS requirements. If you think you will need assistance, please reach out to your contact at FMG or e-mail its Coronavirus Task Force at [email protected].

Which Employers Must Comply By December 5?

All employers that have 100 or more employees on November 5, 2021, are covered:

  • Full-time and Part-time employees at any location count toward whether vaccinated or unvaccinated;
  • Independent contractors do not count;
  • Franchisor and franchisee are separate for coverage (franchisor counts “corporate” employees, franchisee counts “franchise” employees);
  • If “integrated” for safety purposes, separate companies could be subject to the ETS if combined they have 100 or more employees;
  • Staffing agencies count only their employees;
  • Host employer, General Contractor, and Subcontractors count only their total number of employees, but they must count across all work sites;
  • If an employer has 100 employees on November 5 or gets to 100 employees any time after that while the ETS is in effect, the employer is covered, even if they later drop below the 100-employee threshold;
  • There are exclusions for healthcare facilities and Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. The Center for Medicaid & Medicare Services issued its own vaccination mandate regulation for health care facilities on November 4.

Steps A Covered Employer Must Take Before December 5

  • Implement a written vaccination mandate policy or, alternatively, a policy allowing employees to choose to get a vaccination or wear a face covering in the workplace and have weekly COVID-19 testing.  Employers do not need to submit the plan to OSHA, but OSHA can request employers to produce it within 4 business days;
  • Create a vaccination status roster for all employees; and
  • Develop a procedure for collecting vaccination status information and testing information.

Testing For Employees Who Are Not Fully Vaccinated By January 4, 2022

  • Employees that are not fully vaccinated by January 4, 2022 must undergo testing every seven days;
  • Employees who fail to meet testing requirements must be removed from the workplace, subject to certain limited exceptions;
  • Employees who telework or do not otherwise work in a physical location where others are present can be exempted from vaccination and testing requirements. But they must test negative within seven days of entering a physical workplace where others are present;
  • Employees who get COVID-19 do not have to test for 90 days from the diagnosis and must test negative, be released by health care provider, or meet CDC Isolation Guidelines before returning to the workplace;
  • Employers are not required to pay for testing (subject to wage and hour laws), but it may pay for it at their discretion.

Employer Support for Employee Vaccinations

  • Employers are required to support COVID-19 vaccination for each employee by providing reasonable time to each employee during work hours for their primary vaccination dose, including up to four hours of paid time, at the employee’s regular rate of pay;
  • The maximum of four hours of PTO cannot be offset by any other leave the employee has accrued;
  • However, if an employee has already accrued paid leave, an employer may require the employee to use that leave when recovering from side effects experienced following a primary vaccination dose;
  • If an employee chooses to receive a primary vaccination dose outside of work hours, employers are not required to grant PTO to the employee for the time spent receiving the vaccine.

Records

  • Employers must produce an employee’s vaccination or testing records within one business day to an employee or person authorized by employee who requests them;
  • Employers must produce aggregate vaccination status data to requester by the next business day of the request;
  • Employers must produce to OSHA its written vaccination mandate policy and the aggregate vaccination status data within four business days of a request;
  • Employer must produce all other records required by ETS to OSHA by the next business day after the request.

State Law

  • OSHA interprets its regulation to preempt state and local regulation except for state and local regulations of general application
  • State OSHA Plans will likely adopt guidance at least as effective as the OTS

Exceptions and Reasonable Accommodations

Employers may make exceptions for employees who (i) do not report to a physical workplace where others are present; (ii) show that they are medically contraindicated for vaccination; (iii) show that they medically require vaccination delay; OR (iv) or that they are legally entitled to reasonable accommodation.

Under the Americans with Disabilities Act and Title VII, employers are obligated to accept requests for reasonable accommodations from employees who believe they cannot be vaccinated because they have a medical condition or disability or have sincerely held religious beliefs. Once a request is received, the employer must engage in an interactive process with the employee to determine if the accommodation can be granted. The EEOC recently updated its guidance on an employer’s obligations in handling accommodation requests.

In closing, the ETS is highly complex and requires immediate action by covered employers.  Therefore, we highly suggest that you reach out to your FMG Labor & Employment law specialist to ensure compliance with the ETS.