In September 2021, President Joe Biden ordered the Occupational Safety and Health Administration (OSHA) to implement regulations for businesses with over 100 employees to mandate COVID-19 vaccinations for their employees.
On November 3, 2021, OSHA release these guidelines in a 490-page emergency temporary standard (ETS). https://public-inspection.federalregister.gov/2021-23643.pdf. In short, the rules will require workers to receive either two doses of the Pfizer or Moderna vaccines or one dose of the Johnson & Johnson vaccine by January 4, 2022 or be tested weekly and wear face coverings at work. Employees who test positive must be removed from the workplace.
The mandate will apply to about 84 million workers at medium and large businesses. While the rule currently covers employers with 100 or more employees, OSHA left open the possibility of expanding the requirement to smaller businesses and asked for public comment on whether employers with fewer than 100 employees could handle vaccination or testing programs.
What do I need to know?
There are two major questions that need to be asked: Is the employer covered? Is the employee covered? Just because the employer is covered by having over 100 employees, it does not mean all employees must be vaccinated. The employer can have over 100 employees, but the mandate only applies to those working indoors with other employees or the public. If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered but only the 3 employees must be vaccinated or tested weekly.
What businesses are covered by the ETS?
“The applicability of this ETS is based on the size of an employer, in terms of number of employees, rather than on the type or number of workplaces. In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees do count towards the company total, but independent contractors do not…
What if I have over 100 employees across multiple locations?
“For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS.”
What if I am a franchise owner?
“In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.
What if I use a staffing agency?
“In scenarios in which employees of a staffing agency are placed at a host employer location, only the staffing agency would count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS.”
What if my employees are on a construction site?
“On a typical multi-employer worksite such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees, and the host employer and general contractor would not need to count the total number of workers at each site. That said, each employer must count the total number of workers it employs regardless of where they report for work on a particular day.”
What if I have employees working remotely?
“If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.”
However, “OSHA has determined that the provisions of this ETS are not necessary to protect employees from COVID-19 when they are working alone, or when they are working from home… In a home telework environment, many factors – such as the presence of family members and other individuals unrelated to the employee’s work, who may not be fully vaccinated or wearing face coverings – may be beyond the employer’s control. Employees are typically in the best position to manage COVID-19 risks in their homes.”
What this means is that the employees working from home are not required to vaccinated. However, since count as employees, their existence may trigger mandates for other employees working in an office.
What if I terminate employees to fall below the 100-employee threshold?
“The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard… Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. For example, an employer that has 103 employees on the effective date of the standard, but then loses four within the next month, would continue to be covered by the ETS.”
Are there any exemptions to the vaccine mandate?
Yes. Not every employee needs to be vaccinated. The ETS maintains some common sense. As stated, employees working from home are exempt. Employees who work exclusively outdoors are exempt as well. There are also exemptions of health and religious beliefs. If more information in s needed, contact an employment law attorney.
Who is paying for all this?
Vaccinations are provided many places for free. Companies will not be required to provide or pay for the tests, but they must give paid time off for employees to get vaccines and sick leave to recover from side effects that prevent them from working.
Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He is also the author of Land of Liability: A Guide for California Employers. He can be reached at (951) 652-9000.