“On November 4, OSHA issued its COVID-19 Vaccine and Testing Emergency Temporary Standard (ETS) requiring private sector businesses with 100 or more employees to mandate vaccination or weekly testing. On November 16, AmTrust presented a webinar, OSHA COVID-19 Vaccine and Testing Mandate: What Private Sector Businesses Need to Know, with AmTrust’s Kelley Barnett, VP Corporate Counsel-Labor and Employment and OSHA 30 Certified, and Woody Dwyer, Director of Loss Control at AmTrust.” – AmTrust Financial
In this blog, we follow along with the information that was provided to us by our friends at AmTrust Financial. As previously mentioned, the webinar on November 16 touched on OSHA’s EST requirements, the best practices for businesses to be prepared and follow when implanting the ETS, financial and legal considerations and strategies for businesses to consider when handling accommodations.
AmTrust took the liberty of compiling some of the questions that were asked from the Webinar. Below you will find 15 of those questions, along with AmTrust’s response. For the full list of questions as well as more information on this, follow the link to the AmTrust blog.
Question 1: What happens if an employee is terminated due to lack of compliance but the law changes?
Companies are allowed to mandate vaccines and testing, so taking an adverse action against an employee who refuses to comply with your policy is not unlawful unless their employees are entitled to an accommodation due to religious beliefs or certain qualified disabilities. The legal question with the OSHA ETS is whether the federal government can force employers to mandate the vaccines/testing and if the feds are overreaching by doing so. The issue is not whether employers can mandate the vaccine. The Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) have said many months ago that vaccine mandates by employers are lawful and the OSHA ETS and its outcome do not change that. State law may play a factor. I personally don’t think states can prohibit private employers from mandating vaccines and testing, particularly in those businesses where onsite spread risks are high.
Question 2: If employees say they will not notify their employer of vaccination status, how should the employer respond?
According to the ETS, employees who do not confirm that they are fully or partially vaccinated must be treated as unvaccinated. An employee who refuses to confirm vaccination status should therefore be treated as unvaccinated. If the ETS survives the pending legal challenges, and the employee is not entitled to an accommodation due to a medical contraindication, disability, or sincerely-held religious belief, practice, or observance, unvaccinated employees must either get vaccinated or submit to weekly testing and wear face coverings unless they are fully remote, work exclusively outdoors, or meet one of the other ETS exceptions.
Question 3: How should employers handle complaints by employees who comply with the vaccine mandate against others who do not (whether for religious or medical reasons)?
Employees who cannot comply with an employer’s policy due to a medical contraindication, disability, or sincerely held religious belief, practice, or observance are entitled to a reasonable accommodation that does not pose an undue hardship on the employer. Further, the EEOC advises that if “employees ask questions about a coworker who has a disability, the employer must not disclose any medical information in response. An employer also may not tell employees whether it is providing reasonable accommodation for a particular individual.” If coworkers complain about the fact that some employees receive what coworkers perceive to be accommodations, the EEOC advises employers to explain, without disclosing names or specific information, that the company “has a policy of assisting employees who encounter difficulties in the workplace, and that employee privacy rights prevent the company from providing more details.” Employers can also tell complaining coworkers that they look and treat employees individually and make considerations based upon good business reasons allowing for the privacy of each individual.
Question 4: What if a business’s full-time employee count bounces above and below 100 seasonally?
The 100-employee count includes full-time and part-time employees. If an employer’s employee threshold meets or exceeds 100 at any time during the six-month duration of the ETS, those employers are covered even if they drop back below 100 during the effective period of the ETS.
Question 5: What about 1099 employees?
Independent contractors are not considered employees for purposes of the ETS and therefore are not included towards an employer’s 100-employee threshold count.
Question 6: Is the law different for under 100 employees if Medicaid/Medicare funded?
OSHA’s ETS for private employers does not currently apply to entities with less than 100 employees. Medicaid/Medicare-funded entities may need to comply with the mandate issued by the Centers for Medicare and Medicaid Services (CMS) on November 5, 2021.
Question 7: Would a subsidiary of a larger company with 30 employees be required to follow the mandate?
The ETS states “two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.” The ETS does not give further guidance on what “safety matters” may be considered. To determine whether these two entities would be regarded as a single employer, examine the manner in which workplace safety issues are handled for the two entities. If the two entities have separate and distinct safety departments, safety directors and safety policies, and have historically been treated separately by OSHA (for purposes of prior inspections, citations, illness and injury logs), then the subsidiary may be treated as a single employer for OSH Act purposes and, with only 30 employees, would not be required to comply with the current version of the ETS. If the two entities utilize the same safety departments, safety directors and safety policies, then the subsidiary will likely be regarded as an interrelated company of the larger company, and they will likely be regarded as a single employer. In that case, if the combined employee headcount of the larger company and subsidiary is 100 or more, both entities will need to comply with the ETS if it survives the pending legal challenges.
Question 8: Does the ETS apply to Golf Course Maintenance employees?
Yes, if the business has 100 or more part-time and full-time employees at any time during the duration of the ETS. Based on your description of these employees, they may be exempt from your ETS policy if they work exclusively outdoors with de minimis indoor use.
Question 9: How does HIPPA rights play a factor in all of this?
Only Health plans, Health care clearinghouses, and Health care providers who conduct certain financial and administrative transactions electronically have to comply with HIPPA. As mentioned during the webinar, however, an employee’s vaccination status, testing results, COVID-19 illness and other related medical information is confidential medical information and protected by the Americans With Disabilities Act and cannot be disclosed except on a need to know basis to a very limited number of employees, typically in Human Resources. Such information must also be stored separately and away from an employee’s personnel file.
Question 10: With the stays in the courts, do companies still need to comply with the December 5th deadline?
As mentioned during the webinar, there is a chance that the ETS deadlines will be delayed due to the pending legal challenges. That being said, covered businesses should still take some steps to prepare to comply, as discussed during the webinar. See the Action Items slide in the presentation for some recommendations for how your business can prepare.
Question 11: If OSHA has suspended activities related to the implementation and enforcement of the ETS effective immediately, and the Dec/Jan dates no longer apply will new deadlines be set?
OSHA announced, “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” OSHA did not announce that the December and January deadlines no longer apply, but it seems likely that those deadlines will get extended if the ETS survives the pending legal challenges.
Question 12: If a company chooses to follow CDC guidelines instead of the OSHA Vaccine Mandate Policy, can disciplinary action be as simple as you must wear a mask, practice a six-foot distance from other employees, and self-attest each day to no illness? Could this approach avoid the “testing” requirement?
Allowing an employee who does not comply with a covered employer’s vaccine mandate policy to simply wear a mask, practice physical distancing and self-attest to no illness would likely be regarded by OSHA as a violation of the ETS unless the employer does so in order to accommodate employees who are entitled to a reasonable accommodation due to a disability, medical contraindication or sincerely held religious belief, observance or practice.
Question 13: Will the booster shot be required for those that are vaccinated?
No. Booster shots are not included in the definition of “fully vaccinated” under the ETS.
Question 14: Why does an employer have to pay if they allow testing in lieu of a hard vaccination mandate?
An employer is not required to (but can) pay for testing for an employee who chooses to get tested weekly and wear face coverings instead of getting fully vaccinated. However, for testing that is instead provided by an employer to an employee who is entitled to a reasonable accommodation due to a qualified disability, the Americans with Disabilities Act likely requires that employers pay for testing for employees. Also, where applicable, employers should check their collective bargaining agreements and state law, which may require employers to pay for testing.
Question 15: What recordkeeping is needed for the actual test results for an employee, if any?
Throughout the duration of the ETS, employers must maintain records showing each employee’s test result. That record must include the employee’s name and another personal identifier (such as date of birth), type of test, where and how the test was administered and read, and the test result. This information must be treated as confidential medical information.