Summary Of Key Points Of Vaccine Mandate For Employers With 100 Or More Employees

Businesses covered:

• Businesses with 100 or more employees company-wide at any time the measure is in effect (if employee count later drops to under 100, employer is still covered).
• Count employees who are temporary, work part-time, and those who do not report to the office (including those who work from home).
• Do not count independent contractors or employees of a staffing agency.

Employees Covered:

• All employees of covered employers, whether full-time, part-time, or temporary.
• Exceptions: ETS does not apply to any employee who:
  • Does not report to a workplace where coworkers or customers are present
  • Works from home
  • Works exclusively outdoors

Requirements:

• By December 5, 2021, employers must adopt a compliance program in writing, which outlines policies that comply with the ETS.
• By January 4, employers must implement one of the following programs:
  • Hard mandate: require all employees to get vaccinated
    • Exemptions: Employers that implement hard mandate must allow exemptions for employees that show:
      • COVID-19 vaccine is medically contraindicated
      • Medical necessity requires delay in vaccination
      • Are entitled to reasonable accommodation due to disability, or sincerely-held religious belief
    • Soft mandate: allow employees to choose either:
      • Get vaccinated
      • Get weekly COVID-19 test and wear face covering at work
        • Exemptions: Employers must also provide reasonable accommodation to employees who object to testing or wearing a face covering due to due to disability, or sincerely-held religious belief
• Maintain records of employee vaccination status.
• Maintain records of employee testing results.
• Ensure each employee who is not fully vaccinated wears a mask when indoors.
• Provide each employee with certain information about the ETS requirements, vaccine efficacy, and employment protections.
• Report to OSHA work-related COVID-19 fatalities and inpatient hospitalizations.

Vaccination Support:

• Employer must provide employees up to 4 hours of paid time off during work hours to get vaccinated—at employee's regular rate of pay.
  • Includes time spent travelling to and from vaccination site, filling out paperwork, waiting to receive vaccine, receiving vaccine, and waiting at site to ensure no adverse reactions take place.
  • Employer cannot require employee to get vaccinated during non-work hours.
  • If employee decides to go during non-work hours, employer is not required to pay for that time.
• Employer must provide "reasonable" paid sick leave to recover from any side effects.
  • OSHA presumes that 2 days is "reasonable."
  • Employer-provided paid sick leave may be used for this purpose, but if employee has no available sick leave, leave must still be provided for this purpose.

Testing:

• Employee who is not fully vaccinated and reports at least once every 7 days to a workplace where coworkers or customers are present:
  • Must be tested at least once every 7 days and provide test result.
• Employee who does not report during a period of 7 or more days to a workplace where coworkers or customers are present:
  • Must be tested within 7 days prior to returning to workplace.
  • Must provide test result upon return to workplace.
• ***Employer must not allow employees subject to testing to enter workplace until test results are produced.
• Test must be:
  • Cleared, approved, or authorized to detect a current COVID-19 infection
  • Administered in accordance with the authorized instructions
  • Not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.
  • Antibody tests don't meet this definition
• Employer cannot require testing within 90 day after a positive test or positive diagnosis.
  • This means during this period, employee can come to work unvaccinated and not subject to testing.
• ***ETS does not require employers to pay employees for the time it takes them to get tested.
  • However, employers may be required to pay for this time under pre-existing law or CBA.
  • In California, Cal/OSHA is expected to "quickly" issue updated guidance addressing this.

Removal of Employees with Positive Test or Diagnosis:

• Employees must immediately notify employer when they receive a positive COVID-19 test or diagnosis.
• Employers must immediately remove from the workplace any employee with a positive test or diagnosis, regardless of vaccination status.
• ***Employer is not required to provide paid time off when employee is removed/excluded from the workplace.
  • However, paid time may be required by other laws, regulations, or a collective bargaining agreement.
  • Cal/OSHA is likely to address this in its version of the ETS.
• Employee is allowed to return to the workplace when:
  • Employee receives negative test result on a confirmatory NAAT following a positive antigen test;
  • CDC criteria in isolation guidance is met; or
  • Recommended by a licensed health care provider.

Penalties for Non-Compliance:

• Fine up to $13,653 for each serious violation.
• A willful violation (deliberately disregarding the mandate): fine up to $136,532.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.