Nov 06, 2021
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standard (ETS) requiring businesses with at least 100 employees to mandate that their employees get vaccinated against the coronavirus or wear a mask and test for COVID-19 on at least a weekly basis.
Employers have two options, they can either have a policy that mandates vaccination for everyone but still need to grant exception for religion or disability. Or, they can have a policy under which employees can choose between being vaccinated or being tested weekly and also wear a mask to work.
We knew the federal ETS would apply to private employers with 100 or more employees but there were questions about how and which employees to count toward the 100-employee threshold. The employee count is based on all employees - nationwide, full time, part time, temporary, seasonal, all locations combined as well as remote employees -- add up everybody, except independent contractors and leased employees (where the client employer is not the employer of record).
If you have 100 employees starting November 5th or anytime thereafter, the ETS will apply for the duration of the ETS. However, the testing requirement under the ETS, does not apply to fully remote workers, who only work at home and never come in. It also doesn’t apply to workers who come into the workplace who are totally alone all day. If they don't need any clients, customers or other employees, they are not subject the testing requirement. It also doesn't apply to employees who work exclusively outdoors. So there are a few exceptions there.
Employers have to provide four hours of paid time off for employees to get vaccinated and up to two days of paid time off for employee to recover from the vaccine side effects. Interestingly, employers are not required to pay for testing if an employee chooses to go that route. That's a little different than expected however a state law might require it. For example, California requires the reimbursement to employees for necessary business expenses, which could apply here. Employers should also determine whether the cost of testing, if paid for by the employee, will bring the employee’s weekly pay below minimum wage. If so, both the Fair Labor Standards Act and some state laws would not allow this.
Final note, these policies do need to be in writing. Employers will want to get on that before December 5th. The ETS requires covered employers to ensure all unvaccinated workers begin wearing masks by December 5, 2021 and provide a negative COVID-19 test on a weekly basis beginning January 4, 2022.
Read the complete Amwins Connect Compliance Brief here.
