Vaccine Mandates: The Most Important Questions for Businesses Answered

After a presidential announcement on September 9, the Occupational Safety and Health Administration (OSHA) released on November 5 its much-anticipated rules specifying how businesses with at least 100 employees are to ensure their employees are vaccinated against COVID-19, and how to implement an option for employees to be tested if they do not want to be vaccinated. OSHA also posted an extensive list of FAQs.

The rules, known officially as an Emergency Temporary Standard and enforceable by law, require businesses with 100 employees or more to ensure that their workers are vaccinated by January 4. After that, if the employer chooses, employees can avoid vaccination by submitting a weekly negative test for COVID-19. Under the ETS, employers are required to give employees paid time off to get immunized or to recover from any side effects. Workers must provide proof of vaccination to their employer, which is required to maintain records of vaccination status and test results for all employees.

Unvaccinated employees are required to wear a mask in the workplace starting on December 5, if they aren’t already required to do so by their employer. Businesses that don’t comply with the requirements could face fines in excess of $13,000 per violation. These fines are scheduled to increase to $70,000 as part of the Build Back Better budget reconciliation package.

The ETS will remain in place for six months, at which point it will either be replaced by a permanent standard or withdrawn. It is part of the White House’s comprehensive plan called “Path Out of the Pandemic.”

During the period OSHA was developing the ETS, and while it was under review by the White House before publication, business leaders and groups, including the U.S. Chamber of Commerce, expressed numerous concerns to OSHA about implementation issues and the impact the ETS might have on business operations. These issues include the risk of losing workers and further supply chain disruption heading into the holiday shopping season.

Businesses have been taking steps on their own to promote vaccinations among employees, offering bonuses and other incentives, for instance. Moreover, about half of small businesses in a recent U.S. Chamber-MetLife poll either already do or say they are likely to require customers to show proof of vaccination.

OSHA addressed some of the concerns business leaders and groups expressed, namely providing a 60-day period, until January 4, for employers to come into compliance with the requirement to have their employees vaccinated. However, there are also a lot of nuances about which businesses need to be aware. Here are some key aspects of the ETS about which employers may have questions and answers from the Chamber’s policy leaders. (See here for more detailed information.)

How did OSHA arrive at the 100-employee threshold?

According to the ETS, the agency feels that businesses with at least 100 employees have the capacity to carry out the vaccine mandates without undue administrative or financial burden. Based on the 100-employee threshold, the ETS will impact two-thirds of all private-sector workers in the U.S. OSHA feels implementing the mandates in businesses with less than 100 employees would cause “undue disruption.” However, the agency is still looking into the matter and is seeking comment on whether the rule should apply to smaller businesses.

How are the 100 employees counted?

For starters, the threshold is per company, not per location. So, for instance, a franchise operator with one store that has less than 100 employees isn’t covered under the ETS. But a franchise operator with three stores and more than 100 employees total among those stores is subject to the ETS. Similarly, a business is subject to the ETS if it has at least 100 employees at any time during the six-month period in which the ETS is in effect, even if its workforce falls below 100 during that timeframe.

Do employees in international offices, part-time workers, or contractors count towards the 100-employee threshold?

The ETS only applies to U.S. workers. Part-time workers do count towards the threshold, but independent contractors do not.

Employees working remotely are also included as part of the 100-employee threshold, but they do not have to be vaccinated or tested if they are not coming into contact with other employees or customers. So, if a remote worker is the only person in a location or works exclusively from home they are exempt from the ETS.

The only other exception to the standard is employees who work exclusively outdoors and are not traveling to and from jobs with others.

I’m planning to hire a bunch of workers for the holiday season. Do they count?

Temporary and seasonal workers are included among the 100 employees if they are employed while the ETS is in effect. Moreover, employees of a staffing agency do not count towards the host company; instead, they are covered if the staffing agency has at least 100 employees.

What qualifies as being fully vaccinated?

OSHA considers an employee fully vaccinated if they have had both doses of the Pfizer or Moderna vaccination or one dose of the Johnson & Johnson vaccination. Those employees who have received only one shot of the Pfizer or Moderna vaccination are not considered fully vaccinated. Neither are those employees who have previously had COVID and recovered. Booster shots are not part of the vaccination requirement under the ETS.

What if an employee doesn’t consent to be vaccinated? Do I have to let them go?

Not necessarily. The ETS allows employers to retain unvaccinated employees provided the employee agrees to weekly COVID tests and follows masking requirements when working indoors even if they test negative. Employers have the option to provide a testing option and can dismiss an employee who refuses to comply with the vaccine mandate provided the refusal is not based on a sincerely held religious belief or medical reason. EEOC has guidance on how employers should handle requests for religious or medical exemptions.

Employers must provide employees or their representatives with the aggregate number of fully vaccinated employers per workplace location as well as the total number of employees at that workplace.

Do I need to pay for vaccines and testing?

Employers do not have to pay for vaccinations (they are available for free) but must provide up to four hours of paid leave for workers to receive each vaccination dose. This leave cannot take from the employees' existing paid leave balance. Employers must also provide time off to recover, with OSHA suggesting up to two days, and those two days can be drawn from existing paid leave balances. Moreover, employers do not have to provide paid time off for employees who test positive and must be removed from the workplace.

Employers do not have to provide tests or pay for them if an employee merely refuses to be vaccinated. However, if an employee has a religious or medical exemption, the employer would have to pay for testing. The ETS specifies what types of tests are acceptable.

My business is in a state that is challenging the federal vaccine mandate requirement. Do I follow what the state says or what the federal government says?

The ETS supersedes any and all state laws challenging it or that provide for fewer protections for workers than those outlined in the order, which means a state law saying employers cannot require masks or vaccinations would be preempted by the ETS. Some states are “state plan states” with their own state safety agencies. These states must inform OSHA whether they will adopt the federal regulation or implement their own version that is “at least as protective” as the ETS.

What are the key compliance dates under the ETS?

The effective date for the ETS is November 5, 2021, which is the date the ETS was published in the Federal Register. Although the ETS becomes effective immediately, employers have some time to come into compliance with the different requirements of the ETS. By December 5, employers will have to: 

• Conduct an assessment of their workforce to determine who is vaccinated and who is not, obtain acceptable proof of vaccination, and maintain records and roster of vaccination status

• Establish their policy on vaccination 
• Ensure employees who are not fully vaccinated wear proper face coverings when indoors or in a vehicle with another person for work purposes
• Provide each employee information about the ETS, workplace policies and procedures, vaccination efficacy, safety and benefits, protections against retaliation and discrimination, and laws that provide for criminal penalties for knowingly supplying false documentation
• Report work-related COVID-19 fatalities within 8 hours and work-related COVID-19 in patient hospitalizations within 24 hours
• Remove any employee who received a positive COVID-19 test or COVID-19 diagnosis.  

By January 4, employers will have to:

• Ensure all employees are fully vaccinated, or ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly, or within 7 days before returning to work if away from the workplace for a week or longer.

What is the status of the legal challenges to the ETS? Should employers still expect the December 5 and January 4 deadlines to apply?

As of November 12, OSHA has been blocked by a federal court from implementing and enforcing the ETS. OSHA has acknowledged this with a statement on their webpage stating that they have suspended such activities. 

On November 16, the 6th Circuit Court of Appeals was selected by a lottery process to handle all the challenges filed throughout the country. The 6th Circuit will decide whether to keep in place the stay issued by the 5th Circuit that currently keeps OSHA from moving forward. There is still considerable legal process to take place before the ETS is struck down, including likely consideration by the Supreme Court. At this point, employers would be prudent to be moving towards compliance, at least with some of the preliminary requirements such as surveying their employees to determine who is vaccinated, developing their written policies, and deciding how they want to respond to requests for religious exemptions. If the ETS is upheld, OSHA may adjust the deadlines, but that decision has not yet been made.