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OSHA Requirements For Vaccines Or Testing Goes Into Effect

Jan 04, 2022

Come January, the US will have been dealing with COVID-19 for 2 whole years. The small business community has endured so much as the many restrictions and challenges have shifted in nature, and we are not entirely out of the COVID woods yet. In the most recent attempt to limit further spread of COVID, OSHA has issued an emergency temporary standard (ETS) requiring companies of 100 or more employees to enforce a mandatory COVID-19 vaccination policy. There was a temporary stay issued by the US Court of appeals that delayed the initial implementation, but it has since been repealed and went into effect on January 4, 2022. 

First and foremost, does this apply to your business? After the many legislative changes this year that effected even the smallest businesses, this ruling mercifully only effects those with 100 or more employees. If you are under 100 employees, this ETS does not apply to you at this time. There may be other vaccine requirements affecting your business if you are a federal contractor or in the healthcare industry, but this OSHA restriction does not need to be on your radar today! Honestly, feel free to grab a coffee (I’m sure you deserve it!) and read another one of our wonderful blog posts! If that’s not you and you DO have 100 or more employees, maybe still grab that coffee; you deserve it too, and (while we tried to make this simple) may need it!

If you are not sure if you meet the 100 employee threshold, keep in mind that the ETS does not make any exceptions for part-time employees. Contractors do not get included in the count, but if you have 100 or more full-time, part-time, intern, or seasonal “regular” W-4 employees on your payroll, the ETS does apply to you – READ ON!

 

There are mixed feelings and perspectives related to this mandate, and we understand and appreciate the spectrum of opinions – vaccines and medical care in general as sensitive and personal topics for everyone. The stay from the US Court of appeals was not for naught, and we have likely not seen the end of challenges to the ruling. In the mean time, we are here to share our current understanding of OSHA’s ETS and provide you with the tools to do what is best for your business. Lets break it down:

 

Vaccine Requirements

In accordance with the ETS:

OR

  • Employees (if not fully vaccinated) must wear masks according to CDC guidance by December 6, 2021 (now ASAP!) when indoors or in a vehicle with another person for work purposes; AND
  • Employees (if not fully vaccinated) must submit to COVID-19 testing on a weekly basis according to the COVID-19 testing requirements defined below starting no later than January 4, 2022.

While the ETS is framed around a vaccine mandate, it does provide alternate options for employers who wish to offer their employees the option not to be vaccinated. Under this guidance, employees who are not vaccinated by January 4, 2022 must wear masks at all times indoors or with another person in a vehicle for work purposes, and will need to submit to weekly COVD-19 testing starting January 5, 2022. The ETS does not provide guidance on test administration but does clarify that the cost burden does not necessarily need to fall on the business. In Colorado, a resource to keep in mind as you navigate these logistics is that individuals and employers have the option to order at-home rapid COVID tests for free. The ETS does state that in the event at-home tests are used, they cannot be both self-administered AND self-reported – the company or a 3rd party must be part of the process.

 

Affected Employees

In a stroke of administrative luck for smaller businesses, only employers with 100 or more employees must comply with the ETS at this time. A big question many effected business owner and employees have is, “what if all or some of my employees work remotely?” Do employees need to be vaccinated to work from their own homes? The answer: Most likely not! OSHA did have the mercy to clarify that employees in the following categories do not fall under this mandate:

  • Those who do not report to a workplace where coworkers or customers are present
  • Those who work from home
  • Those who work exclusively outdoors

Employees in one of the above excluded populations who make visits to the office are still required to meet the mandate guidelines during effected time periods. (Ex: A remote employee is coming into the office for an all-hands meeting; If they are not fully vaccinated, they would be required to wear a mask at all times during the visit and submit to COVID testing.)

 

Administrative requirements

HIPAA

The ETS defines that employers must receive and store proof of vaccinations and the weekly test results of unvaccinated employees. To this we want to remind you of our friendly neighborhood regulation HIPAA. All documents containing employee medical information need to be stored separately from the rest of the employee files, in a secure limited access location. [HIPAA info?]

Time off for Vaccination

In accordance with the ETS, employees must be provided up to 4 hours of paid leave to receive each vaccination dose, and well as reasonable time and paid sick leave to recover from side effects experienced following each dose. For those keeping track (Hi! We’re your HR geeks!), CO employers are currently already required to provide up to 48 hours of paid sick leave through the Healthy Families and Workplaces Act, and another up to 80 hours through the Emergency Paid Sick Leave addendum it contains. The good news is that this time to receive the vaccine can come out of these existing balances.

COVID-19 Testing Requirements

Like we mentioned above under Vaccine Requirements, the ETS stipulates unvaccinated employees will be required to submit to COVID-19 testing no less than once a week. If a company wished to pay for and provide testing on site, that is their prerogative, but currently CO still offers free testing sites across the state. If it is feasible for your employees to get to these locations, it would be advisable to use this resource for now. The ETS does not contain a preference for rapid style or PCR which opens up options.

COVID-19 Infection Protocol

We have a whole  COVID-19 Policy available on HR Branches Online for our members. For the purpose of the ETS, the following protocol must be followed at minimum. Any employee, regardless of vaccination status, known to be infected with COVID-19, either by a positive test or diagnosis by a healthcare provider must:

OSHA Reporting

If you have over 10 employees, you would already be familiar with OSHA reporting. In accordance with the ETS, businesses must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization.

 

Penalties

Given the late stay removal and quick turn around for implementation, OSHA has said that they will not issue any citation before January 10th, 2022 and will not issue any citations regarding the testing requirement before February 9th, 2022. OSHA’s standard monetary penalties can be found on their website.

 

Take-Away

If you have more than or close to 100 employees, we recommend promptly evaluating your workforce and at least thinking through (if not developing) a rough plan of how you will proceed with the ETS going into effect. One way or another, it is unlikely this is the last we will hear about COVID-19 vaccines in the workplace and its good to know where you stand. Whether or not the OSHA ETS applies to your company right now, keep an ear to the ground for the ever-changing requirements, and be sure to follow us for further information as it becomes available!

 

Resources

OSHA COVID-19 Vaccination and testing ETS Fact Sheet

OSHA COVID-19 Vaccination and testing ETS Summary

OSHA COVID-19 Vaccination and testing ETS FAQs

OSHA COVID-19 Vaccination and testing Key Dates

Key Things to Know About COVID-19 Vaccines

Information for Employees on Penalties for False Statements and Records

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