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By December 4, 2021, large employers (those with over 100 employees, including remote and part time employees – everybody) must put in place vaccine mandate requirements for employees.  Today OSHA issued the Emergency Temporary Standards (“ETS”) for large employers and Frequently Asked Questions[1], which turns out to be similar to the previous medical provider and Federal Contractor mandates.  The Delta variant and unknowns fueled the government’s vaccine mandates.

Employers must provide 4 hours of paid time off to employees to get vaccinated and time to recover from ill effects of the vaccine.  Unvaccinated workers must be tested regularly and wear masks in the workplace.  And employers must either (1) implement a mandatory COVID-19 vaccination policy (allowing only certain exceptions); or (2) implement a ‘soft’ COVID-19 vaccination policy, allowing employees to choose either vaccination or to provide a regular negative test result and wear a face covering.  The incentive in the ETS is for employers to implement option 1 – hard mandate for all employee vaccination.  The choice is the employers to make.  Choosing option (2) will require weekly testing.  However, testing is not required for employees who: (1) do not report to a workplace where other customers or coworkers are present; (2) work from home; or (3) work exclusively outdoors.  But these exclusive remote employees must provide negative testing 7 days before coming to an employment site or function (holiday parties).  And these new guidelines are intended to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employer’s authority to require vaccination, face covering, or testing …

Exclusively Outdoors means – the employee must work outdoors on all days, not routinely occupy vehicles with other employees, and only de minimis indoor time (e.g., multi-stall bathroom).  Will certain states challenge this OSHA ETS? Absolutely.  Will OSHA or the challengers (states, unions, employers) win? Who knows, but the ETS was issued this morning and there is already a lawsuit filed in the 6th Circuit in the mid-west.  There is a real risk that objection lawsuits may not prevail.  Last Friday, the U.S. Supreme Court decided to allow Maine’s vaccine mandate for health care workers to go into effect, rejecting an emergency request from workers who argued they should receive religious exemptions. This decision was principally decided based on there being no emergency to challenge the mandate, without full briefing and arguments before the court.  Stay tuned for other decisions.

There are risks to the employer if it does not comply with the ETS, which include class action lawsuits by employees and OSHA investigations/fines.  OSHA already stated that it intends to aggressively enforce the mandate and stated that it will treat each employee as a separate violation, will pursue “willful” and “egregious” determinations to increase the range of penalties available, and will issue fines for willfully failing to comply, which could be as much as $14,000 per violation.  OSHA defines exceptions from the mandatory vaccine as employees (1) where the vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination, or (3) who are legally entitled to reasonable accommodation under federal civil rights laws because of a disability or sincerely held religious belief (See EEOC guidance on this).[2]  We have covered these three issues in other updates.  The take-away here is that an employee granted an exception must still be tested weekly.

In the interim, large employers should try to arrange for vaccination and testing centers or in-house capabilities, update leave policies for vaccinations and the ill effects, assess how many employees are already vaccinated and how many will opt for weekly testing if you choose to offer that option, update policies governing disability and religious exceptions, review and revise your COVID-19 plan and review state laws regarding compensability for time spent by employees for testing and payment for the tests.

Who pays for vaccinations and/or testing? That is not clear.  The ETS does not require employers to pay.  However, other laws and union agreements may require the employer to pay.  For example, California Labor Code Section 2802: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties …”

As we have noted before, Employers will be required to keep records of employee vaccinations and where legal exceptions were granted to an employee, the weekly COVID-19 test results.  All of this information is confidential and requires employers to handle the information as such.

Here at Epps & Coulson, LLP we understand that these vaccine mandate issues may be confusing.  We are available to advise.  Feel free to contact Dawn:

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is considered advertising under laws of some states.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

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