- Richard Liu, Esq. (Managing Counsel), Neo Chen (Counsel)
On November 4, 2021, Occupational Safety and Health Administration (“OSHA”) released an emergency temporary standard, requiring medium and large employers (those with 100 or more employees) to implement policies either requiring mandatory COVID-19 vaccination, or offering a weekly testing alternative to employees who are not fully vaccinated (the “Mandate”). The deadline to comply with this order is January 4, 2022. The Mandate can be accessed here.
Which Employers Must Comply?
The Mandate requires employers with 100 or more employees. In determining whether they meet the 100-employee threshold, employers must include all employees across all of their U.S. locations, regardless of employees' vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors do not. Below are some additional scenarios:
Company with Multiple Locations: For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage.
Affiliated Companies: For a parent company that has multiple subsidiaries or for affiliated companies, two or more related entities may be regarded as a single employer if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.
Staffing Firms: In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage.
Which Employees Must Comply?
The Mandate extends to all employees except the following groups of individuals:
employees who do not report to a workplace;
employees who work from home; and
employees who work exclusively outdoors.
What Else Does the Mandate Require?
Face Coverings and Testing
Employers must require their employees who are not fully vaccinated to wear a face covering when indoors and when occupying a vehicle with another person for work purposes. Fully vaccinated is defined as two weeks after receiving two doses of Pfizer or Moderna vaccine, or two weeks after receiving one-single dose of Johnson & Johnson vaccine.
Employers must also take measures to make their employees provide prompt notices if they receive a positive result or are diagnosed with COVID-19. These employees will need to be removed from the workplace immediately.
Report Cases and Maintain Records
Employers are required to report work-related COVID-19 fatalities to OSHA within 8 hours after learning about the cases, and to report work-related COVID-19 hospitalizations within 24 hours. Employers also need to collect each employee’s vaccination status, and properly keep those documentation, as well as unvaccinated employees’ testing records.
Provide Vaccination Support and Information
Employers bear the responsibilities to provide necessary support, including up to four hours of paid time to receive a vaccination dose, as well as paid sick leave to recover from side effects. ETS does not require employers to cover costs associated with COVID-19 testing.
What is the penalty?
OSHA can issue citations for noncompliance for $13,653 per violation if classified as serious or other than serious, and up to $136,532 if willful or repeated. In addition, it is foreseeable that employees may use any potential noncompliance as supporting evidence to show company’s negligence in civil lawsuits.
Severe Push Back by Many States
Currently, four separate groups of 26 states total have petitioned the Fifth, Sixth, Eighth, and Eleventh, Circuits to review the legality of the Mandate. Private litigants, including temporary staffing agencies, manufacturing industry employers, and a coalition of small businesses have also filed petitions in the Fifth, Sixth, Seventh, Eighth, and D.C. Circuits, requesting a stay of OSHA’s Mandate, outlining the irreparable economic harm they would suffer if the ETS remained in effect. As of November 6, the Fifth Circuit issued an order “staying” the mandate, meaning the court has temporarily restricted the Mandate from being enforced.
All these cases are pending and may go to the Supreme Court.
If your company falls under the Mandate’s coverage, we recommend consulting an attorney to discuss the best method to respond to the Mandate, taking into consideration of factors such as the difficulty of implementing the Mandate, the potential reaction of your employees, the financial burden of the Mandate on your company, and the potential outcome of the legal challenges against the Mandate.
Our firm will continue to monitor the development of the requirements, and keep you updated as this matter progresses.
If you have any questions, please do not hesitate to contact our managing counsel, Richard Liu, at Richard.email@example.com.
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Richard Liu, Esq. is the Managing Counsel of ILS. He serves clients as a management-side defense lawyer specializing in employment and business litigation. Richard is also an expert on litigation prevention and compliance. He regularly advises Fortune 500 companies and startups on employment, labor, and commercial matters.
Email: email@example.com | Phone: 626-344-8949
*Disclaimer: This article does not constitute legal opinion and does not create any attorney-client relationship.