OSHA COVID-19 Employer Mandate Update
The following information is provided courtesy of the US Chamber:
As you are undoubtedly aware, the Biden administration filed its emergency OSHA rulemaking on Friday the 5th. The rulemaking embodies the COVID vaccination mandate on employers of 100 or more to ensure that their employees are vaccinated or are subject to onerous testing requirements. The very next day, a federal appellate court in Louisiana placed a stay on the rulemaking at the request of several states that challenged the validity of the rule.
Since Saturday, the administration has filed a response to the stay with the 5th Circuit Court of Appeals in New Orleans yesterday and has stated it would pursue a consolidation of the various suits across the nation.
In addition, press reports indicate that the Biden administration is calling on all potentially impacted employers to continue to plan for implementation of the rule and they should not await the outcome of legal proceedings.
As things stand, we await the next steps in the legal process and employers remain in limbo as to whether to prepare for implementation of the rule or to wait for future developments.
It is very important to note – barring any delays in implementation from legal challenges – that January 4 is NOT the first deadline impacted employers need to focus on. December 5 is the first deadline in which employers will need to: 1) assess which employees are currently vaccinated and which ones are not; 2) require masking of those employees not yet vaccinated and 3) develop a plan for documenting and recording employee vaccination status and weekly testing of those employees that remain unvaccinated after January 4.
As has been widely reported, the maximum fine for a violation of the rule is $13,600. A single violation does not yet seem well defined. However, a determination that an employer is in willful non-compliance with the mandate carries a fine up to $136,000.
If an employee decides they will not become vaccinated by January 4, they will have to undergo weekly COVID testing at their own expense – except in limited circumstances – and provide documentation of a negative test result to their employer. They will also have to adhere to masking requirements. It is the employer’s responsibility to document and record all negative test results for each unvaccinated worker.
Our thanks go out to the US Chamber of Commerce who has a team of experts working this extremely important issue. Attached, we have included additional information they have compiled and continue to compile for their members and the Chamber Federation.
Frequently asked questions on the COVID-19 Vaccination and Testing ETS are provided by the US Department of Labor here.
