Published on: November 5, 2021
Authors: Gregory Hoff
The Occupational Safety and Health Administration has issued its Emergency Temporary Standard requiring all employers with more than 100 employees to mandate onsite employees be vaccinated or else provide negative test results.
The main points of the ETS include:
- Employers with 100 or more employees must ensure that each of their onsite workers is fully vaccinated by January 4, 2022. Alternatively, employers can allow for unvaccinated employees who work onsite to provide negative test results, generally on a weekly basis. Employers are not required to offer testing as an alternative.
- Employers do not have to pay for or provide testing materials.
- Employers must provide up to four hours of PTO for employees to get vaccines at the employee's full regular rate of pay and paid sick leave for employees to recover from any side effects that prevent them from working.
- Fully remote workers are not subject to the ETS requirements.
- Employers must keep physical or digital copies of employee vaccine documentation (not just attestations), which must be kept confidential and stored separately.
- Failure to comply could result in a $14,000 fine for the employer per violation.
- Vaccination and Testing ETS landing page
- Vaccination and Testing ETS fact sheet
- Vaccination and Testing ETS FAQs
- Full Vaccination and Testing ETS text
Federal contractor vaccine mandate compliance delayed to January 4 in updated guidance: Separately, the Biden administration announced that the compliance deadline for the vaccination mandate for federal contractors will be extended to January 4, 2022, to align with the ETS deadline. The administration also left it up to covered contractors to determine how to enforce compliance with the mandate, including termination of employees who refuse to comply after counseling. You can read more about the updated guidance here, and access a full summary of the guidance updates here.
Meanwhile, the Centers for Medicare and Medicaid Services (CMS) also issued an emergency regulation requiring “vaccination of eligible staff at health care facilities that participate in the Medicare and Medicaid programs” by January 4, 2022.
HR Policy will host a webinar Monday, November 8th, from 2:00 to 3:00 pm EST to discuss the implications of the ETS for covered employers, and to inform the Association’s forthcoming engagement with the Biden administration on this issue.
Outlook: In general, the ETS does not contain many surprises for employers and the extended compliance deadline allows employers more time to effectively communicate expectations to employees. Nevertheless, recordkeeping requirements and various issues implicated by testing and reasonable accommodations, among others, will present compliance challenges for employers. HR Policy will continue to engage with the administration to ensure that such issues are heard and will provide members with compliance guidance on an ongoing basis.