F E AT U R E Employers Prepare to Comply with the Mandatory COVID-19 Vaccination Requirements by Jamie Hasty, SESCO Management Consultants
On Oct. 12, 2021, the Occupational Safety and Health Administration (OSHA) sent a draft of the emergency temporary standard (ETS) requiring vaccination or weekly testing of workers for employers with 100 or more employees to the White House's regulatory office for approval. The ETS is expected to be reviewed and approved by the White House very quickly and employers will need to be prepared for implementation and compliance. By preparing now, employers can avoid possible penalties due to lack of planning. These steps will help an employer be prepared to comply with the new requirements, which may become effective immediately upon release. Statements made by OSHA officials regarding anticipated requirements are included below but are subject to change under the ETS. As a reminder, private employers (businesses) with 100 or more
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employees are likely to be subject to the following:
• For states without their own OSHA
state plan, an immediate effective date upon release of the ETS is possible. State plans will likely be given a time frame in which to come into compliance, possibly as little as 15-30 days.
• Expected challenges: The governors
of several states have indicated they will challenge the mandatory vaccinations for the private sector, so it is possible some or all of the new requirements may be delayed until legal challenges are resolved. Employers should not assume their obligations will be lifted, however, and should prepare now.
• Employee threshold calculation:
Guidance is expected within the ETS as to how employees will be counted (i.e., at one location, total organization population, joint-employer implications,
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parent company versus subsidiaries, etc.). Officials have suggested that the 100 employees will be based on total organization headcount.
• Testing: Who pays for the alternative
weekly testing is unclear. Most group insurance must currently pay for suspected infection or exposure testing, but routine testing is not yet addressed. Some states also currently require any required medical tests to be paid by the employer.
• Paid time off: The ETS will include
requirements to provide paid time off to covered employees to get vaccinated and recover from any side effects. Whether current PTO may be used for this is unclear.
• Fines: Employers who do not comply
with the ETS could face OSHA citations and penalties of up to $14,000 per violation.
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