What Small Businesses Need to Know About the Employee Vaccine Mandate

Editor's Note: The U.S. Department of Labor’s Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, that impacted employers with 100 or more employees. The withdrawal is effective January 26, 2022.

Additionally, our experts have clarified the answer to an audience question about remote workers in the above video. The updated answer is: If an employee works 100% remotely (no contact with other employees or customers) the regulations say they can be exempt from both the vaccination and testing requirements. They do count towards the 100 employees, and the 100% remote is a strict definition.

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You’ve likely heard that President Biden’s “vaccine mandate” will take effect in the coming weeks and are wondering how it might impact your small business. Here’s what you need to know. The Department of Labor’s Occupational Safety and Health Administration (OSHA) has developed an Emergency Temporary Standard (ETS) for employers with 100 or more employees, which mandates that employees must either receive COVID-19 vaccinations or produce weekly negative tests before coming to work in person. You can see more info on the ETS here.

Here are some FAQs regarding your obligations with COVID-19 vaccinations and testing for employees.

What immediate actions do I need to take?

Eligible employers must develop a program to verify the vaccination status of their employees and maintain records of vaccination status and test results. Workers who express a sincerely held religious belief or cannot be vaccinated for medical reasons can be offered a testing option instead of being vaccinated.

Can I offer alternative options to those who do not wish to be vaccinated and do not qualify for a religious or medical exemption?

If employers do not want to dismiss employees who are not vaccinated, they have the option to allow those unvaccinated employees to submit a weekly negative COVID test and follow masking requirements when working indoors. However, employers are not required to offer a testing option under the ETS.

When does the ETS go into effect?

Starting on December 5, 2021, unvaccinated workers must adhere to masking requirements in the workplace. As of this date, employers will also need to provide four hours of paid leave for workers to get shots. It’s important to know that the four hours of leave must be in addition to any leave already available to employees. This means employers can not make employees use existing PTO, sick time or other leave to cover those four hours.

Employers must also allow additional leave for workers who need to recover from side effects of vaccination. OSHA has suggested this additional leave should be around two days. If an employee does need time off to recover from the vaccine, the employer must give them that time off, but they can require the employee use their existing sick leave or PTO for recovery time.

All employees should be fully vaccinated by January 4, 2022. Workers who are unvaccinated will be required to submit negative test results at least weekly starting on January 5, 2022. If an employee is away from work for more than a week, a negative test must be provided within 7 days before returning to work.

How long will ETS be in effect?

The ETS will be in effect for six months, at which point OSHA will determine if the temporary standard should be made permanent.

How is the 100-plus employee threshold determined?

The threshold is determined per company rather than per location and covers all U.S. employees. An employer is covered if, at any time during the period the ETS is in effect, they have at least 100 employees, even if at times they have fewer than 100 employees.

Do part-time employees and independent contractors count towards the 100-employee threshold?

Part-time employees are included in the 100-employee threshold. Independent contractors are not included.

What about employees who work from home?

Employees working from home do count towards the 100-employee threshold, but they do not have to be vaccinated or tested if they are not coming into contact with other employees or customers.

Do I have to provide paid time off for vaccinations?

Employers must provide four hours of paid leave for each vaccination dose and allow “reasonable” time off to recover from side effects, which OSHA has suggested is about two days.

Do I have to provide or pay for testing?

No, employers are not required to provide or pay for tests. However, other laws outside of the ETS may have these requirements for exceptions, such as for those with religious or medical accommodations.

What happens if an employee tests positive?

If an employee tests positive, employers must immediately remove them from the workplace and notify OSHA within eight hours of a work-related positive case, and within 24 hours of a work-related case that involves hospitalization. Employers do not have to provide paid leave for employees who test positive, unless required by other laws.

Are unvaccinated employees who test negative still required to observe masking requirements in the workplace?

Yes, unvaccinated individuals must adhere to masking requirements regardless of their test results.

What happens if testing is unavailable or there are lab delays?

If testing is unavailable or there are lab delays that prevent an employee from getting a test result, OSHA will look at an employer’s efforts to comply and their record of compliance and refrain from enforcement where the facts point to good faith efforts to comply with the ETS.

Who is considered fully vaccinated?

Only employees who have received one shot of a one-shot regimen or two shots of a two-shot regimen are fully vaccinated. Booster shots are not currently part of the vaccination requirement under the ETS.

Do employers need proof of employee vaccination?

Yes, employers must obtain proof of vaccination status from their employees. However, employers are not responsible for fraudulent documents submitted as proof.

Are there any exceptions to these requirements?

Yes, there are three exceptions to these requirements:

• Workers who report to a workplace where no one else is present.
• Workers who work exclusively remotely.
• Workers who work exclusively outdoors without regular transportation in a vehicle with others.

What if state or local laws provide inconsistent information with ETS?

The ETS preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.

If your business operates in a state plan state, worker safety agencies may develop their own plan that is “at least as protective” as the OSHA standard and may be more protective.

How do I communicate these requirements to my employees?

Employers must provide the following to employees in a language (and to a literacy level) that they can understand:

• Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS.
• The CDC document, “Key Things to Know About COVID-19 Vaccines.”
• Information about protections against retaliation and discrimination.
• Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

My small business doesn’t have 100 employees yet, but may cross that threshold in the next six months. Should I start following OSHA’s ETS anyway?

If at any time during the ETS is effective your business crosses the 100-employee threshold, you must immediately begin adhering to the requirements set forth by OSHA.

For more information on OSHA’s ETS, you can go here.

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