OSHA Sets Jan. 4 Deadline for Workforce Vaccinations
A broad range of Connecticut employers face January deadlines to have their workforces fully vaccinated against COVID-19.
The U.S. Occupational Health and Safety Administration released a 490-page Emergency Temporary Standard Nov. 4, covering the Biden administration’s COVID-19 vaccination and testing requirements announced in September.
Private sector employees with 100 or more employees, federal contractors, and healthcare employees at Medicare and Medicaid-certified providers are impacted either by the ETS, an executive order signed by President Joe Biden in September, or the U.S. Centers for Medicare and Medicaid Services’ Nov. 5 interim rule.
The ETS is effective Nov. 5, following publication in the Federal Register.
Federal contractors, who originally faced a Dec. 8 deadline to have workers fully vaccinated under the president’s executive order, will now have until Jan. 18.
Other covered employers face a Jan. 5, 2022 deadline for compliance or have unvaccinated employees test weekly for COVID-19.
There is no testing option for employees of covered federal contractors.
While the ETS does not include employers will less than 100 employees, OSHA notes that it “needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination.”
Employer Requirements
The ETS requires employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless the employer wants to adopt a policy requiring employees to choose between getting vaccinated or undergoing weekly COVID-19 testing and wearing a face covering at work.
There is no testing option for employees of federal contractors or covered healthcare facilities who refuse vaccination.
Covered employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination—which may include self-attestation if a vaccine card is not available—and maintain records and rosters of employees’ vaccination status.
OSHA provided compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions, and other materials.
Employers have until Dec. 5 to comply with recording and recordkeeping requirements, implementing mask mandates for unvaccinated employees, providing paid time off for employees to get vaccinated, and accrued paid leave, if necessary, for employees to recover from any side effects.
The testing requirement for unvaccinated workers begins Jan. 4. To be fully vaccinated, a person must have received two doses of the Pfizer or Moderna COVID-19 vaccine, or one dose of the Johnson & Johnson vaccine.
Testing Costs
“We continue to support implementing measures to fight the pandemic and move our economy forward, but we are disappointed that businesses are responsible for interpretation, enforcement, and compliance,” CBIA president and CEO Chris DiPentima said in response to the rule.
“Employers in Connecticut care deeply about their employees and value their relationships. Unfortunately, this mandate puts employers in the middle in some ways.”
The ETS preempts states and municipalities from adopting and enforcing workplace requirements relating to these issues, except under the authority of a federally approved state plan.
Employers are not required to pay for or provide tests for employees, although OSHA notes that “employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.”
DiPentima said despite the cost-savings on testing, the ETS imposes a “significant” administrative burden on employers.
“This will take a lot of time, effort, and money,” he said. “This rule will continue to put a strain on labor shortage issues across the state.
“Losing even one or two percent of workers right now is something employers cannot afford.”
Key Takeaways
- Employers must determine the vaccination status of each employee and maintain vaccination records.
- Religious and medical exemptions are permitted for private sector employees. Under the rule, exempt employees are “those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.”
- Employers must provide paid time off for employees to get vaccinated.
- Employers must provide sick leave for side effects from the vaccine that prevent an employee from being able to work.
- The ETS does not apply to employees who do not report to a workplace where other individuals are present, employees while they are working from home, or employees who work exclusively outdoors.
- Remote workers make up the 100-employee count, but are not subject to vaccination or testing unless they report to work where other employees are present.
- OSHA will enforce the rule as they do any other. If there is a complaint, efforts will be focused there. There will also be some programmed or planned inspections.
- OSHA penalties for serious non-compliance violations are typically $13,653 per item, $136,532 for willful penalties.
- Employees who are not fully vaccinated must wear a face covering.
- Employers must require employees to alert them when they received a positive test or COVID-19 diagnosis.
- Work-related COVID-19 fatalities must be reported to OSHA within eight hours of an employer learning about it.
- Work-related COVID-19 hospitalizations must be reported within 24 hours of an employer learning about it.
- Employers must provide employees with information about the ETS requirements and workplace policies and procedures; the CDC document Key Things to Know About COVID-19 Vaccines; information about protections against retaliation and discrimination; and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
The Big Picture
The mandate will impact 80 million private sector workers across the U.S.—two-thirds of the country’s workforce.
OSHA expects the ETS will lead to approximately 23 million vaccinations and estimates it will prevent more than 6,500 deaths and over 250,000 hospitalizations.
U.S. President Joe Biden said that while he would have preferred not to impose the employer requirement, “too many people remain unvaccinated for us to get out of this pandemic for good.”
Twenty-four percent of companies reported their workforces were 100% fully vaccinated, with 42% reporting 75%-99% vaccination rates and 17% between 50%-74%.
A recent CBIA survey of Connecticut companies found that businesses are divided on government vaccine mandates, with 52% supportive, 37% opposed, and 11% unsure.
Taken in August, the survey also found that 24% of companies reported their workforces were 100% fully vaccinated, with 42% reporting 75%-99% vaccination rates and 17% between 50%-74%.
About 59% of the U.S. population is fully vaccinated. Connecticut is among the leading states, with 70% of residents inoculated.
Legal Challenges
Last week, eighteen states filed three separate lawsuits against the vaccine mandate for federal contractors.
A lawsuit filed by the Tennessee, Ohio, and Kentucky attorneys general called the federal mandate “unlawful and unconstitutional,” saying the potential loss of employees presents a concern for the states’ economies.
But legal experts have said legal challenges may be long shots, with courts already having ruled in favor of workplace vaccine mandates.
Legal challenges may be long shots, with courts already having ruled in favor of workplace vaccine mandates.
The OSH Act gives OSHA the authority to act quickly in an emergency where the agency finds workers are subjected to a “grave danger” and a new standard is necessary to protect them.
The OSH Act also provides that OSHA standards preempt any state occupational safety or health standard “relating to [the same] occupational safety or health issue” as the federal standard OSHA.
Still, lawsuits could impact the timeline outlined in the ETS.
“Meanwhile, CBIA will continue to help employers understand the rules,” DiPentima said.
For more information, contact CBIA’s Diane Mokriski at the HR Hotline (860.244.1900) | @HRHotline.
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