Large Employer OSHA Vaccination Rules to Take Effect By Jan. 4, 2021

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In September, the Biden administration announced their six-step plan to stop the spread of the Delta variant, increase vaccinations, protect children in schools, and keep the economy open during this “pandemic of the unvaccinated.”

Two of these steps are being rolled out in two different vaccine rules covering more than 100 million workers.

The rules require employees that fall into those groups to receive the necessary shots to be fully vaccinated, either two doses of Pfizer or Moderna’s vaccine or one dose of Johnson & Johnson’s vaccine, by Jan. 4.

The announcement also makes clear that the vaccine rules will preempt any state or local laws aimed at banning vaccine mandates or other measures to limit the spread of COVID-19.

A federal appeals court temporarily blocked the Biden administration’s new vaccine rules that could apply to larger employers, certain health care workers and federal contractors. The court asked the government to respond by 5 p.m. on Nov 8th and said it would expedite the case. The court did not specify whether its order would have nationwide effect or would only apply to the states under its jurisdiction.

100+ Employee OSHA Rule

The first rule, issued by the Occupational Safety and Health Administration, covers companies with 100 or more employees, applying to an estimated 84 million workers.

  • Companies must ensure that their workers are either fully vaccinated against COVID-19 by Jan. 4 or that they test negative for COVID-19 at least once a week.
  • Workers must get up to four hours of paid time off to get vaccinated during normal work hours and provide sick leave for workers to recover from any side effects. This is not required to employees who choose to receive the vaccine outside of their regular work hours.
  • The rule does not require employers to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise in some cases.
  • Unvaccinated workers must also wear face coverings while on the job by Dec. 5.

OSHA will be enforcing this rule just like the agency enforces any of the other rules that are in place, and employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that for willful or repeated violations.

That agency will have planned inspections of some workplaces to ensure they follow the rule, but enforcement will largely fall to companies themselves.

With only a couple thousand state and federal OSHA inspectors nationwide, there is no mechanism for checking up on millions of workplaces to see whether they are in fact keeping vaccination and testing records.

Rather, OSHA inspectors will mostly respond to employee complaints and add COVID-related inspections to their to-do lists when they are already on-site.

Determine Employer Coverage

The 100-employee threshold is based upon a company-wide headcount rather than the number of employees at a particular worksite.

Employers should count all employees individually, whether they are full time, part time or working on a temporary basis. Independent contractors and leased employees are not counted and does not apply to employees who work remotely or employees who work exclusively outdoors.

Research Testing Options

The rule does not require the employer to cover the cost of testing. However, employers should consider the following:

  • Are there current state laws that would require employers to pay for employment-related costs?
  • What are the projected costs for both the employee and employer for testing?
  • Will the cost of testing, if paid for by the employee, bring the employee’s weekly pay below minimum wage?
  • Will an employer’s budget allow for employer-paid testing or is mandatory (free) vaccination the better option?

Health Care Workers Vaccination Rule

A second rule issued by the Centers for Medicare & Medicaid Services requires some 17 million health care workers to be vaccinated by the same deadline, Jan. 4, but with no option for weekly testing as there is a higher bar for health care workers given their critical role in ensuring the health and safety of their patients.

The rule covers all employees, clinical and non-clinical, at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid.

Earlier, Biden had ordered federal workers and contractors to be vaccinated, with no testing option. Federal workers have until Nov. 22 to get the shots, while federal contractors have until Jan. 4, which had previously been scheduled to take effect on Dec. 8.

CNS Occupational Medicine offers accurate COVID-19 testing for employers locally or mobile on-site

CNS Occupational Medicine offers services to contribute to your company’s Return-to-Work Plan, including pre-shift screenings meant to test employees before starting their shifts. Risking the health of your employees and your business is not worth it. 

Start your customized health plan to meet your business needs and keep your employees healthy and safe.

For more information, contact us at 800.551.9816 or info@cnsoccmed.com.