The highly anticipated emergency temporary standard ("ETS") from the federal Occupational Safety and Health Administration mandating COVID-19 vaccinations or weekly testing for workers at US companies with 100+ employees was officially published on November 5. During this 60-minute webinar, Rachel Conn, Shelagh Michaud, and myself, discussed this mandate, as well as the vaccination mandate for federal contractors, in more detail.
The facts:
OSHA ETS for Large Employers
- Although the ETS is currently on hold due to the nationwide stay issued by the Fifth Circuit Court of Appeals, the stated deadline to implement weekly testing for workers who have not yet received their final dose in a primary vaccination series is January 4, 2022
- Employers will not have to cover costs for COVID-19 tests for unvaccinated workers who choose the testing option, but employers may be required to pay for testing for employees who have medical or religious exemptions, under other applicable laws, and/or under collective bargaining agreements or employment contracts. These issues will need to be reviewed on a case-by-case basis
- Employers must begin providing up to four (4) hours of paid time off for workers to get vaccinated (and a reasonable additional amount of paid time to recover from any side effects) and comply with the masking requirement for unvaccinated workers as of December 5, 2021
- Should the ETS survive, employers may face penalties of up to $13,653 for each violation. If an employer is deemed to have deliberately disregarded the mandate, it could face fines as high as $136,532 per violation
Federal Contractor Mandate
- Federal contractors must include a clause certifying compliance with the Safer Federal Workforce Task Force Guidance (the "Guidance") to all qualifying contracts and subcontracts
- The Guidance requires federal contractors to ensure that all covered employees and anyone working "in connection with" a covered contract or working in a workplace with a covered employee are fully vaccinated by January 18, 2022 (i.e., last dose by January 4)
- The Guidance also requires that federal contractors ensure that unvaccinated employees and visitors wear proper face coverings indoors and in all crowded outdoor locations, AND that fully vaccinated employees working in an area of high or substantial transmission (as designated by the CDC) wear proper face coverings indoors
How to effectively prepare:
- Determine employee vaccination status—survey employees and collect appropriate documentation regarding their vaccination status, and maintain a roster of the vaccination status of every employee
- Review current vaccine and/or testing policy (if any) to ensure compliance with OSHA ETS for Large Employers and/or Federal Contractor Mandate
- Educate employees—Who is covered? What is required? When are the deadlines? What are the exemptions?
- Require unvaccinated employees to wear face coverings at all times when indoors and in crowded outdoor locations
- Require immediate notice of positive employee test results, and remove (and keep removed) employees from workplace until they meet criteria to return
- Review federal contracts to determine potential applicability of mandate and be on the lookout for communications from federal agencies or up-line contractors regarding required compliance with the mandate
- Consult with counsel regarding applicability of mandates and/or implementation questions
Please reach out to me, my co-presenters—Rachel Conn and Shelagh Michaud, or your Nixon Peabody Labor & Employment attorney with any concerns you might have or to discuss how we can assist you.