5 Things to Know about the Biden-OSHA Mandate
The Biden Administration has tasked the Department of Labor’s Occupational Safety and Health Administration (OSHA) with emergency rulemaking that will compel companies with 100 or more employees to require staff to be vaccinated or tested weekly and to give paid time off to get inoculated.
Employers that fail to comply with the OSHA vaccine mandate could face fines of nearly $14,000 per violation.
Here are five things to know about the OSHA vaccine mandate along with some tips to prepare for the regulation.
No Clear Date for Issuance of Mandate Rules
As of this writing, OSHA has not offered a specific timeline for the rollout of the new requirements, but news outlets report that the initial text of the rule has been submitted to the White House for review, causing speculation that release could be imminent. Observers say the administration wants to be careful to ensure that the regulation can withstand legal challenges.
The 100-Employee Requirement
The Labor Department confirms that the 100-employee threshold is counted on a company-wide basis rather than a worksite basis, so a company with two separate locations employing 50 people at each site would be required to comply.
Collecting and Verifying Vaccination Status
The exact mechanism for employers to determine if an employee is vaccinated is unknown. The Labor Department will only say that specifics of employers’ responsibilities will be clarified with the issuance of the emergency rule.
However, new guidelines for federal contractors require a verifiable record, such as a vaccination card. And this may ultimately be the same requirement for private employers. In other words, an attestation from an employee, without verifiable proof, will not be enough to meet the standard.
Which Test for Unvaccinated Workers
The OSHA rule will need to clarify which types of weekly COVID-19 test are acceptable for unvaccinated employees. Observers point to current guidelines for federal contractors as a clue. That guidance says Federal agencies may use any viral test that has been authorized by the Food and Drug Administration such as a PCR or Rapid Antigen test.
Compliance for Remote Employees
The Labor Department officials said in a recent webinar that remote, private-sector employees will not subject to the vaccination/testing requirement as long as they are not working in direct contact with other individuals in the workplace.
The government’s rule for its own workers is less forgiving. All federal employees, even those who work from home or remotely, must be vaccinated by November 22, 2021. Officials say the stricter standard is because employees who work offsite may interact with the public as part of their duties, or they may need to be recalled from remote work.
How to Prepare
The issuance of the OSHA Emergency Temporary Standard (ETS) is expected to be challenged in court, but labor experts say employers shouldn’t count on the rule being overturned. Instead, they say, it’s prudent to prepare for the verification of employee COVID-19 vaccination status. Employers that do not mandate vaccination should plan for employee testing and consider how results will be validated and documented.