The White House announced on September 9, 2021 that the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) is developing an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any unvaccinated worker to produce a negative test result on at least a weekly basis before coming to work.
The announcement included that all federal employees and contractors must be vaccinated, and President Biden ordered the DOL’s removal of the weekly testing option in lieu of a vaccine. All employees of health care facilities that receive Medicare and Medicaid funding must also be vaccinated.
Employers with 100+ Employees Must Require Employee Vaccinations
The ETS has not yet been released, and there is not yet information as to how to count employees for purposes of the 100-employee threshold. Yet, the penalty for non-compliance could carry a minimum fine of $14,000 per occurrence. An occurrence is defined as each instance an unvaccinated employee, without a negative COVID-19 test, works on company property.
Mind Anti-Discrimination Laws
All employers should continue to mind all federal, state, and local anti-discrimination laws and should prepare for contingencies in which a company should accommodate an employee’s medical or religious exemption request.
Americans with Disabilities Act
Under the ADA, employers can conduct medical exams or ask disability-related questions when the exam or question is job-related. The question, “Did you get a COVID vaccine?” is not a disability-related question, and employers may properly pose this question to their employees. Yet, employers who will self-administer vaccinations should exercise caution in choosing questions for pre-vaccination health questionnaires. These health questionnaires should ask questions related only to the employee’s health related to receiving the vaccine. A more intrusive question can be construed as a medical exam violating an employee’s rights under the ADA. All medical information must be kept confidential and stored separately from an employee’s general personnel file.
Title VII of the Civil Rights Act
Mind Title VII’s requirement that employers examine religion-based exemption accommodations requested by an employee. Any mandatory policy should clearly set forth the process by which employees can request an exemption or other accommodation if the employee declines the vaccination due to a qualifying medical condition or a sincerely held religious belief. Employers should in good faith interact with the employee requesting the exemption and document the effort to balance the requested accommodation with any undue hardship to the employer.
Employers Must Provide Employees With Paid Time off to Get Their Vaccine
All employers meeting the 100-employee threshold must give their employees paid time off to obtain vaccinations and to recover from any possible side effects. While certain states have already required employers to give their employees paid time off for vaccination or COVID-19 testing, this federal mandate expands this requirement to employers across the country.
We anticipate additional information when DOL’s OSHA officially releases the ETS. Tressler’s employment attorneys are dedicated to helping employers succeed and can help your company navigate the ever-changing rules in this fluid environment.
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