Q&A | How the new employer vaccine mandate will work

What are the new requirements?
Published: Nov. 4, 2021 at 5:30 PM EDT
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LEXINGTON, Ky. (WKYT/AP) - Tens of millions of Americans who work at companies with 100 or more employees will need to be vaccinated against COVID-19 by Jan. 4 or get tested for the virus weekly.

The new requirements are the Biden administration’s boldest move yet to persuade reluctant Americans to finally get a vaccine that has been widely available for months -- or potentially face financial consequences.

Which federal agency issued the new mandate?

The U.S. Department of Labor’s Occupational Safety and Health Administration announced the new emergency temporary standard to protect more than 84 million workers from the spread of the coronavirus on the job. The agency says the nation’s unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.

What are the new requirements?

Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy:.

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Which employers are impacted?

The rules impact private-sector employers with 100 or more employees. Kentucky is one of 26 states and two territories with OSHA State Plans which means the ETS will also cover public sector workers employed by state and local governments, including educators and school staff. Kentucky’s OSHA State Plan is monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths.

Is the count based on 100 employees for the entire business or per location?

OHSA says the count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.

Are part-time employees included in the 100-employee threshold?

Yes. Part-time employees do count towards the total number of employees. For example, a company with 75 part-time employees and 25 full-time employees would be considered to have 100 employees and would be within the scope of this standard. Independent contractors do not count towards the total number of employees.

Why aren’t all employers facing the same requirement?

In light of the unique occupational safety and health dangers presented by COVID-19, and against the backdrop of the uncertain economic environment of a pandemic, OSHA says it is proceeding in a stepwise fashion in addressing the emergency this rule covers.

The agency says it’s confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption.

OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination.

What if someone works from home or work outdoors?

The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.

Do employees or employers have to pay for masks and testing for un vaccinated workers?

The emergency temporary standard does not require employers to pay for testing or masks. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings or testing.

What’s the penalty for companies that don’t comply?

The Occupational Safety and Health Administration says companies that fail to comply could face penalties of nearly $14,000 per violation. The requirements will apply to about 84 million workers at medium and large businesses.

Can employers implement additional measures in their workplaces?

The ETS establishes minimum requirements for employers. Employers could set more stringent requirements.

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