The Workplace Vaccine Mandate is Still On Hold – Here’s Why

Ever since the COVID-19 pandemic began, employers have been struggling to both stay in compliance with federal mandates and do what is best for their businesses and employees to stay afloat – even more so now in the wake of the new Omicron variant. When the Biden administration introduced a nationwide COVID-19 vaccine mandate in September 2021 for corporations with over 100 employees, backlash ensued, leading to confusion on where the law stands on the issue.

Shortly thereafter, on November 5, OSHA’s vaccination emergency temporary standard (ETS) was published. However, the following week, OSHA announced that it would be suspending all activities related to the implementation and enforcement of the ETS due to the overwhelming amount of pending legal cases on both statewide and national levels surrounding it. Throughout the month of December, various legal cases have been put into motion, causing OSHA’s vaccination ETS to come back into focus at the potential outcome of the courts’ rulings.

Who is in The Mandate’s Scope?
While it’s currently not enforced, OSHA has put out guidelines on exactly who’s included within the ETS and will hold true to them throughout the litigation processes. Employers included within this standard are those who identify as:

• Private employers with 100 or more employees corporate-wide.
• State and local government employers in states with OSHA-approved state plans, as well as private employers with over 100 employers in those states.

According to OSHA, there are certain employees that, while falling into the ETS coverage, are exempt from the federal mandate. This includes employees in work settings that allow them to do the following:

• Do not report to a workplace where other individuals are present.
• Work from home full time.
• Work exclusively in an outdoor setting.

Workplaces that aren’t covered by this ETS – even if it becomes enforced are as follows:

• Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
• Public employers in states without state plans.
• Workplaces of employers who have fewer than 100 employees in total.

How the Vaccine ETS is Different
While workplace employers and safety professionals have seen their fair share of ETS’s these past two years, this one varies from the others due to the enforcement of permanent medical decisions within the workplace. Aside from general safety and social distancing protocols from previous standards, this vaccination ETS (still unenforced or monitored by OSHA until litigation goes through) will be requiring employers to enact the following protocols within their workplace:

• Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
• Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
• Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
• Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly or within 7 days before returning to work.
• Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
• Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
• Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
• Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated, protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
• 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 the employer learning about the hospitalization.
• Make certain records available for examination and copying to an employee or an employee representative.

What About Local Requirements?
These nationwide vaccination requirements are being challenged by 27 separate state governments and several business groups, although a big change just happened on December 15, 2021 that now allows 26 states to require mandates for healthcare workers only – still not affecting everyone included in the private industry ETS. The ETS for healthcare workers was originally released back in June, although it has been under scrutiny and pushbacks in the courts which delayed its official enactment and enforcement until now. This effects all healthcare workers and professionals in facilities that are currently receiving federal funds or assistance. For easy specifications on if you’re included in the revived healthcare employee ETS, you can refer to OSHA’s healthcare flowchart.

In addition to the recent allowance of individual state healthcare worker vaccination requirements and in the wake of the Omicron variant, New York City just released a mandate on December, 13, 2021 that is unique in its requirements from the rest of the country, affecting over 180,000 businesses. Going into effect on December 27, 2021, it is the first state or local private sector mandate to require any business or self-employed individual who comes into contact with others to receive and carry proof of a 1^st dose of COVID-19 vaccination. It does not apply to remote employees or those in solo positions. This will be enforced by inspectors immediately on December 27, with a minimum fine of $1,000, going up from there. Workers will be required by law to receive their 2^nd dose within 45 days of their 1^st dose, or be barred from the workplace until proof is provided. As an employer in NYC, you will be required to complete a certificate and post it in a public place to display your compliance with the mandate by December 27, 2021.

Best Practices in Safety
As the pandemic progresses and mixed messages about requirements are still persisting, employers should stay up-to-date on the ETS workplace best practice recommendations from the Delta variant earlier this year to keep implementing in the meantime to ensure the health and safety of their employees. When it comes to visual safety and compliance needs, visit our resources for environmental health and safety professionals where we cover key topics on regulation updates, proper sign content, and more.

• December
• Standards Insider