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  • Writer's pictureMatt Crumpton, Esq.

What Is Biden’s New OSHA Vaccination or Testing Mandate And Does It Apply To Your Business?

Updated: Aug 10, 2023

A few months ago President Joe Biden announced that he would be rolling out vaccine mandates through the Occupational Safety & Health Administration (OSHA) for employers with 100 employees or more. A test out option was also included. While there are already lawsuits pending to stop this new rule, the OSHA Emergency Temporary Standard became effective, today, November 5, 2021.

  • What is the requirement? There are several requirements that you have to follow if the law applies to you.

1. Keep vaccination status records. You must ask for the vaccination status of all employees and document it. You are required to keep a copy of the actual vaccination records of all of your employees who are vaccinated.

2. Paid leave for vaccination and side effects. For employees who want to be vaccinated, but have not yet received the vaccine, you must provide 4 hours of paid leave for them to be vaccinated. (The 4 hours applies to the Johnson & Johnson one shot or the Pfizer/Moderna two shot vaccines.) Also, you are required to provide paid sick leave for up to two days for employees to recover from side effects of the vaccine. However, if the employee already has sick leave accrued, they must use that time first.

3. Testing for unvaccinated employees. Unvaccinated employees are required to obtain weekly negative covid tests for so long as the rule remains in place. The tests are not required to be paid by the employer (but employers can opt to pay for the testing if they want). The specific type of test that is administered CAN be an over the counter self-administered test (which is much cheaper than a lab test), but only if observed by the employer. You are required to keep a record of every test result that is administered for each employee and when it is administered. Unvaccinated employees are required to wear a mask while in the workplace. But, if someone has previously tested positive for Covid, they are exempt from testing for 90 days after their positive test.

  • Only applies to employers with 100 employees or more. The rule only applies to employers who have 100 employees or more. To calculate the number of employees, you must include all full-time and part-time employees, regardless of the hours worked. This is not a full-time equivalent standard. It is a literal head count. If your company has 100 or more employees as of November 5, 2021, then the standard applies to you. You cannot get out of it by dipping your overall employee number below 100. After you have been above 100 employees once, the rule continues to apply to you. If you have fluctuating employee numbers, you need to determine whether you were over 99 employees at any time since November 5, 2021. If so, the rule applies to you.

  • No Specific Aggregation Rules.* There is nothing in the FAQs issued by the Department of Labor for the rule that requires employers to aggregate businesses together based on common ownership. Instead, this rule appears to look at actual employees of the specific entity. However, the New York Times says (without providing any additional detail) that “Labor lawyers said that if related companies are managed in a way that combines control of occupational safety and health measures, then their employees should be counted together toward the 100-worker threshold.” Sounds legit, lol. The answer is that we really don’t know about aggregated entities.

  • How are franchises treated? Franchisees and the franchisor are treated as distinct entities. Only multiple locations that are owned by the same entity are required to add their employees together. The employees of the franchisees and franchisor are not combined to reach the 100 employee threshold.

  • What bad thing happens if you don’t follow the rule? The penalty is $13,653 per violation. If the violation is willful or repeated, the maximum is $136,532 per violation.

Whether this rule goes into effect remains to be seen, given the numerous lawsuits that have been filed or are expected to be filed. One thing to keep in mind here is that there are only 1,850 OSHA inspectors in the United States. So, if the rule is ultimately deemed to be enforceable in the courts, OSHA will have serious logistical challenges to ensure the rule is being followed.

If you want more information, check out the rather helpful FAQ issued by OSHA, here.

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