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This morning, the federal Occupational Safety and Health Administration (OSHA) released its much-anticipated Emergency Temporary Standard (ETS) governing COVID-19 vaccination and testing requirements for employers with 100 or more employees.  The ETS is expected to be published in the Federal Register tomorrow (November 5, 2021). It requires that covered employers establish a COVID-19 policy that either (1) requires mandatory vaccinations or (2) gives employees the option to be vaccinated or produce a weekly negative COVID test and wear a mask while indoors.

The deadline for the covered employers to require employees who are not fully vaccinated to begin weekly testing is 60 days from publication (likely January 4, 2022). The remainder of the requirements, including requiring masks for unvaccinated workers, providing paid time off, and providing the required notices to employees, among other things, is 30 days from publication (likely December 5, 2021).

Importantly, the ETS does not require compliance for employees while working from home or employees who work exclusively outdoors. Employers should also be prepared to respond to requests for accommodation for disabilities or sincerely held religious beliefs. Forms for these requests are available and can be provided. 

Employers with 100 or more employees should prepare to comply by the January 4, 2022 deadline. Employers who are federal contractors or healthcare providers subject to OSHA’s Healthcare ETS are not subject to these requirements. While various states and other government officials have signaled an intent to challenge the ETS in the court system, the law remains in effect until a Court orders otherwise.

BEFORE OSHA RULE MANDATING VACCINE:NOW:
Companies could choose whether to mandate the COVID vaccineCompanies with 100 or more employees must require their employees be vaccinated against COVID or be subject to weekly testing and wear a mask
Companies could choose whether to require negative COVID testsCompanies with 100 or more employees must require weekly negative COVID tests unless vaccinated
Companies had to make accommodations for sincerely held religious beliefs or disabilitiesCompanies still must make those accommodations on a case-by-case basis
Companies could craft their own policies and notices on COVID-19 issuesCompanies with 100 or more employees must provide notice to employees of the ETS requirements and workplace policies established to implement the ETS; a CDC document “Key Things to Know about COVID-19 Vaccines”; information about protections against retaliation and discrimination; and information about laws that provide for criminal penalties for knowingly supplying false statements or documentation

Vaccine Mandate Q&A with Gunster’s Labor and Employment Attorneys:

Who counts toward the 100-employee threshold?

The 100-employee threshold will be based upon the employer’s total headcount versus the number of employees at a particular worksite and the number should come from the count as of the date of the ETS’s publication (November 5, 2021).  All employees will need to be counted, regardless of whether they are full-time, part-time, or temporary, and regardless of vaccination status.

What are qualifying companies’ obligations for vaccinating employees?

The ETS requires covered employers to support employee vaccination by providing paid leave for employees to get vaccinated (up to 4 hours) and an unspecified amount of paid sick leave for employees to recover from side effects. The ETS does not require covered employers to pay for the vaccine itself. Even if not required by law, employers should consider covering any cost of vaccination that is not covered by insurance because of the probable negative impact on employee morale of doing otherwise. The ETS requires covered employers to obtain each employee’s vaccination status and, for vaccinated employees, to obtain and maintain a record of the vaccination status and proof of vaccination while the ETS is in effect. These records are considered medical records that must be kept confidential and separate from the employee’s personnel file.

What are qualifying companies’ obligations for employees who choose to test in lieu of vaccination?

Employees who choose to test in lieu of vaccination are required to be tested with an FDA-approved COVID-19 test and wear a face covering at all times except in explicitly defined circumstances. The ETS does not require the employer to pay for the cost of the test or the face covering, but acknowledges that other laws may require that. The weekly test records are to be maintained by the employer in the same manner as employees’ other confidential medical information is maintained while the ETS is in effect.

Will remote workers be under mandate?

Generally, no. Employees who work exclusively outside, remotely from their homes, or in workplaces where there are no other people present are exempt from the mandate. These remote employees will not be required to show proof of vaccination or be required to test weekly.

How long will companies have to implement requirements?

The deadline for the covered employers to require employees who are not fully vaccinated to begin weekly testing is 60 days from publication (January 4, 2022). The remainder of the requirements, including establishing policies consistent with the ETS and providing the required notices to employees, among other things, is 30 days from publication (December 5, 2021).

Do companies still have to accommodate religious and medical objections to the vaccine?

Yes. The ETS allows weekly COVID-19 testing as an alternative to those who object to the vaccination. If testing for COVID-19 also conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.

What are the consequences for qualifying companies who don’t comply?

The ETS allows OSHA to “separately cite employers for each instance of the employer’s failure to protect employees and for each affected employee, where appropriate.” Fines could amount to $14,000 per violation, with the potential for multiple citations per business. Fines include violations from not only implementing these requirements, but also knowingly accepting fraudulent or falsified proof from employees. The penalties for falsifying materials can be criminal, for both employees and employers.

If employees are fired for not complying with a vaccine mandate, can they get unemployment benefits?

Governor DeSantis has called a Special Session of the Florida Legislature and one of the top items on the agenda is extending unemployment benefits to workers fired for noncompliance with a vaccine mandate. As of now, however, employees in Florida are not eligible for unemployment benefits if their employment is terminated for refusing to comply with a vaccine mandate unless the fired employee has a valid religious or medical objection to the vaccine that the employer failed to accommodate.

What are some practical consequences of this rule that qualifying companies need to prepare for?

Companies need to prepare to effectively administer employees’ weekly COVID testing and track results. Additionally, companies who implement a vaccine mandate should be prepared for the potential hit to their workforce from the loss of objecting employees who either resign or are fired for failing to comply. The market is already suffering from a shortage of available workers, and any additional employment loss could create strain on remaining personnel. Companies who are concerned about losing employees who object to vaccines can minimize the burdens associated with weekly testing by, for example, paying for or providing the tests to employees on site, and emphasize this option to employees.


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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 11 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, Vero Beach, and its headquarters in West Palm Beach. With over 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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