Editor's Note: This story was updated on January 6, 2022 to reflect the most recent information available.
On November 4, 2021, the Department of Labor and the Occupational Safety and Health Administration (OSHA) announced its Emergency Temporary Standard (ETS), which mandates companies with 100 or more employees to require them to be fully vaccinated against COVID-19 or submit to weekly testing. Independent retailers across the country are reading the fine print to determine if the ETS applies to them with part-time employees, across multiple locations, and more unique considerations. With mandates at the local level in some counties despite the number of employees, every retailer should be aware of the details behind the federal mandate. Keep reading for resources and information to guide your policies.
Need a quick summary? Read OSHA's FAQs here.
With the Supreme Court scheduled to hear oral arguments in the legal challenge to this employer mandate on Friday, January 7, 2022, the National Grocers Association (NGA) released the following statement on January 5, 2022:
NGA members with 100 or more employees should begin preparations to comply with OSHA’s Emergency Temporary Standard (ETS) according to the current enforcement timeline in the scenario that the high court allows the mandate to move forward and OSHA does not announce any further delays."
The enforcement timeline is as follows (see OSHA FAQs for full details for each requirement).
Requirement | January 10, 2022 | February 9, 2022 |
---|---|---|
Establish policy on vaccination (paragraph (d)) |
X |
|
Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status (paragraph (e)) |
X |
|
Provide support for employee vaccination (paragraph (f)) |
X |
|
Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis (paragraph (h)) |
X |
|
Remove any employee who received positive COVID-19 test or COVID-19 diagnosis (paragraph (h)) |
X |
|
Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes (paragraph (i)) |
X |
|
Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (paragraph (j)) |
X |
|
Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours (paragraph (k)) |
X |
|
Make certain records available (paragraph (l)) |
X |
|
Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer) (paragraph (g)) |
|
X |
We spoke to NGA Director of Government Relations Robert Yeakel (cited below as RY) about these concerns and gathered information from OSHA.gov (cited below as OSHA) to address independent retailers' concerns.
Does my company need to have a vaccination policy?
RY: Companies with 100 or more employees are required by OSHA to have a policy that either enforces mandatory COVID-19 vaccination, or implements face coverings and weekly testing at the workplace for those employees who are not vaccinated. But with state and local municipalities creating their own requirements, we strongly recommend every business, regardless of size, create their own COVID policy, taking into consideration evolving state and local policies regarding vaccinations, testing, and face coverings.
OSHA has provided two sample policies for employers:
What information must be provided to employees?
OSHA: The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand:
Are part-time employees included in the 100-employee threshold?
OSHA: Yes. Part-time employees do count towards the total number of employees. For example, a company with 75 part-time employees and 25 full-time employees would be considered to have 100 employees and would be within the scope of this standard.
Are the 100 employees counted for the entire business or per location?
OSHA: The count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
How will seasonal or temporary workers be addressed in the count?
OSHA: Temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency) are counted in determining if the employer meets the 100-employee threshold, provided they are employed at any point while the ETS is in effect.
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 (November 5, 2021). If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date.
However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements. 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, if an employer has 103 employees on the effective date of the standard, but then loses four within the next month, that employer would continue to be covered by the ETS.
What do employers do with vaccination information?
RY: Employers are required to determine the vaccination status of their employees, obtain acceptable proof of vaccination, maintain records of each employee's vaccination status, and maintain a roster of each employee's vaccination status. Since this is health information, there are certain confidentiality and privacy requirements that must be taken into account. NOTE: Employers are usually not blocked by HIPAA in seeking information about an employee's vaccine status.
What happens if some of my employees refuse to be vaccinated, for any reason?
OSHA: Employees themselves may choose not to get vaccinated, in which case they must get tested and wear face coverings per the requirements of the standard. Other safety precautions recommended by the CDC, such as physical distancing, offer employees additional protection but are not required by this ETS and do not replace the need to comply with the ETS.
Will I have to pay for testing unvaccinated employees?
RY: As the rule is written, employers will not be required to pay for the tests or the masks of these employees who choose to remain unvaccinated. However, some employers may choose to purchase tests for their unvaccinated employees, and/or set up testing facilities at their business for employees.
What if testing is scarce in my area?
OSHA: In the event that an individual employer is unable to comply due to inadequate test supply or laboratory capacity, OSHA will look at efforts made by the employer to comply, as well as the pattern and practice of the employer’s testing program, and consider refraining from enforcement where the facts show good faith in attempting to comply with the standard.
RY: Yesterday, NGA and over 30 other industry trade groups called on the Biden administration and state governors to prioritize testing availability and access to tests for essential business workforces. While President Biden announced plans last month to provide 500 million tests to those in need, many businesses have found it difficult to source tests for their unvaccinated employees in advance of OSHA’s vaccine-or-test requirements. (NOTE: OSHA’s vaccine-or-test mandate does not require applicable employers to provide testing, but many have elected to do so).
Are employers required to pay employees to get the vaccine?
OSHA: The ETS requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose.
What happens if we can't or don't enforce the weekly testing for unvaccinated employees?
RY: Companies that violate the ETS will be fined up to $13,653 per infraction. This is based on the current OSHA fee and penalty structure, but this amount could be increased. The current Build Back Better plan has a provision that would raise these OSHA fines to $70,000 per violation, but that is currently up in the air.
My business operates in a state that prohibits/limits employers' authority to require employees to be vaccinated. Do I still need to comply with the ETS?
OSHA: Yes. The ETS preempts and invalidates and state or local requirements that ban or limit an employer's authority to require vaccination, face covering, or testing.
Are booster shots required for the ETS?
OSHA: Booster shots and additional doses are not included in the definition of fully vaccinated under the ETS. Therefore, the employer is not required to obtain vaccination-related information beyond what is considered necessary to demonstrate that the employee is fully vaccinated as defined by the ETS.
What are the religious exemptions?
RY: The EEOC has updated its guidance for religious objections and the ETS clarifies that "social, political, or personal preferences are not considered religious beliefs."
What are the medical exemptions?
RY: Employers may make reasonable accommodations for disability and pregnancy conditions as defined by the Americans with Disabilities Act. Consult the EEOC guidance to learn more.
Where can I learn more about the ETS and my company's eligibility?
How can I talk to my employees about getting the vaccine?
Approach any conversations with employees about the vaccine with care, as it is ultimately up to the individual whether or not to get vaccinated. IGA has gathered tips for talking to employees about getting the vaccine. Find the highlights listed below, or read the article in its entirety here.
If you have more questions about the mandate and your eligibility, visit the OSHA website and stay tuned to The IGA Minute and IGA emailed news updates for the latest information.
Additional Resources: