Answers to Your OSHA Vaccine Mandate Questions (i4cp login required)

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In August, we launched the Getting Hybrid Work Right meeting series, a biweekly forum for peers—primarily HR leaders and decision makers—to discuss and share ideas regarding to return to office planning, hybrid work approaches, and, of course, employee vaccine mandates—specifically how to balance personal safety with the desire to keep employed workers who are unvaccinated.

President Biden’s executive order on vaccine mandates for employers with over 100 employees, now formalized under OSHA guidance, made some policy decisions easier—but also introduced new complexities and gray areas.

Below are some of the questions that emerged from our most recent meeting, where we were joined by Jackie Len, Senior Counsel, Human Resources and Employee Relations, at Unibail-Rodamco-Westfield. You can also watch the informative on-demand recording.

What are the basics I need to know about the U.S. federal vaccine mandates?

Read here about what you need to know about the U.S. federal vaccine mandates.

Do part-timers and contractors count toward the 100-worker threshold?

Part-time employees do count towards the OSHA ETS threshold. Contractors do not, nor do volunteers. Companies may choose to apply their own policies more widely, including to contractors and/or volunteers.

Does the 100-worker threshold count just United States-based employees, or all employees globally?

The 100-worker count includes U.S.-based employees only. (Global organizations will need to follow the various requirements for their employees in each jurisdiction.)

If our unvaccinated employees cannot come into work, will they be eligible for unemployment?

This involves each state’s separate policy. In many cases, if an employee declining to vaccinate and/or test is considered a violation of company policy, then they would not be eligible for unemployment benefits. Some states’ laws on this might vary and/or be changed in the coming months, and there could be differences in application of policy based on case managers and specific circumstances.

Are 100% remote employees of organizations with 100 or more payroll employees required to vaccinate/test?

U.S.-based fully remote employees do count towards the organization’s 100 or more employee count, but they are exempt from the requirements of the OSHA ETS. The same is true for employees who work remotely but only come in, for example, an annual meeting—the OSHA ETS only requires they provide a negative test within 7 days of coming on-site. (A company could have a more stringent requirement, e.g., requiring vaccination to come on site, but that is not the requirement of the OSHA ETS).

What about drivers, e.g., truck drivers or others whose workplace is their vehicle?

If they are alone, and don’t expose workers or customers (other than very briefly, such as to use a restroom), then the OSHA ETS does not apply to them. If they are part of a paired driving team, or if part of their job is to load or unload goods at a warehouse or store where other people are present, then the OSHA ETS does apply to them.

What about workers who work only outdoors?

Employees that work exclusively outdoors (again, with the exception of briefly going indoors, e.g., to use a rest room) are not covered by the OSHA ETS. This is because OSHA, CDC, etc. recognize the difference in COVID-19 transmission outdoors vs. indoors.  

Is it permissible to place employees who refuse to test on leave before just terminating for non-compliance, e.g., to give them time to make a final decision?

Check state policies on this. Note that employees that are on furlough, because they are not on-site, are not covered by the OSHA ETS.

What does maintaining records “as though they were medical records” mean?”

No personal information about individuals can be disclosed, only data like overall percentages of employees who are vaccinated, etc.

What are the rules on sick time for the vaccination, recovery time, and testing when allowed as an option?

Employers must provide up to four hours of paid time, including travel time, for employees to get the vaccination. This cannot be deducted from an employees’ paid sick time. The employer must provide reasonable time and paid sick leave to recover from side effects experienced following any primary vaccination dose, and/or the time needed for regular testing. Such time can be first deducted from the employee’s sick time, but employers must provide additional paid sick time as necessary.

Do workers who recently tested positive for the coronavirus still have to comply with weekly testing where that is an option?

No, not for 90 days. When an employee has received a positive COVID-19 test, or has been diagnosed with COVID-19 by a licensed healthcare provider, the employer must not require that employee to undergo COVID-19 testing for 90 days following the date of their positive test or diagnosis.

Do employers need to pay for testing?

This is not required by the OSHA ETS, though different states or union contracts may dictate otherwise. Some organizations will also consider this as a separate matter, as akin to accommodation requests (e.g., having a special desk due to a bad back), with some choosing to pay for testing as a result.

What if there is a delay in test results coming in?

Based on the principle of the OSHA ETS, best practice is to keep such employees away from the worksite until the test results comes in (if possible to work remotely, they can do so).

What system should be used to track vaccine and testing records?

The OSHA ETS does not specify any particular system. Some organizations are using their HRIS, e.g., Workday, to track this information. Some are using solutions from other vendors, e.g., Clear, ServiceNow Safe Work, Proxy.com, etc.

For many additional Q&A on this topic, see this article from the New York Times.

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