Q&A: OSHA Vaccine Mandate–What does this mean for me?

Danny Speros, Director of People Ops, Zenefits
Nov 9, 2021

The Biden Administration and OSHA have released more information regarding their vaccine mandate. In this POPS! episode, VP of People Operations Danny Speros breaks down what employers should be thinking about as this mandate nears implementation. Additional Resources OSHA Resources: OSHA.gov

The Biden Administration and OSHA have released more information regarding their vaccine mandate.

In this POPS! episode, VP of People Operations Danny Speros breaks down what employers should be thinking about as this mandate nears implementation.

Additional Resources

Transcript

The Biden administration has released its rules around vaccines for large employers. What does this mean for me?

Welcome to pops. The show shows you how to shift from human resources, paperwork to people, operations for the new world of work. How by answering one question at a time.

Today to help us answer your question. Here’s Danny Speros, VP of People Ops at Zenefitsl

OSHA, which is the occupational health and safety administration. That’s the division of the government that helps make sure that workplaces are safe. They’ve issued an emergency temporary standard, which was announced on Thursday, November 4th.

Uh, the details were published on Friday, November 5th, and that essentially becomes the effective date, but it was challenged in courts almost immediate. There’s currently a, uh, an order from the fifth circuit court of appeals in new Orleans to block the implementation of these rules while it undergoes legal challenges.

Um, despite this order, it’s still very possible that these, uh, These guidelines are going to go into effect as originally published, published, and possibly on the originally communicated dates. So, uh, what does that mean for, for us is that we should start thinking about these kinds of things and start putting in motion, uh, certain things that we’d be able to do in the event.

This all comes to fruition. Before we dive into the details. One quick point. This is myself as a representative of Zenefits and Zenefits, and I are sharing this information to be helpful, but, uh, I got to let you know, I’m not your attorney. I’m not even an attorney at all this isn’t legal advice. I’m not predicting the future around how these things are going to play out.

It’s just our way of helping our community of small and mid-sized businesses navigate the things that come up like. All right. Let’s get down to business. Uh, the vaccine mandate is kind of a misnomer. The government isn’t actually requiring anyone to get vaccinated as part of the standard. It’s leaving that, uh, that decision up to employers and we’ll dive into what that really means.

Who does this impact? So this is really chasing after, uh, private sector employers with a hundred or more US-based employees, um, public sector, workplaces, federal contractors, uh, some of those engaged in the healthcare industry may already be covered by more, um, more stringent and separate standards issued by.

Also, um, employees who, uh, work for a covered employer, but do not report to a workplace with others or who worked from home or who work exclusively outdoors, aren’t necessarily covered by all of the details of this particular standard. And even if you’re not covered by the standard, um, all employers are required to provide a safe work environment and you might want to consider some or all of these measures in your own workplace.

So what’s required of employers. Uh, and we’ll dive into a little more detail in just a moment, but essentially they’re required to develop a policy they’re required to track vaccination status and they’re required to, um, have in-person working employees either be fully vaccinated or wear a mask and test, uh, test negative at least weekly.

Another couple requirements is that employees must notify their employer of a positive test. Meaning if I test positive for COVID, I’ve got to let my employer know. And then the employer’s got to track that. And to the extent I’m working in an office, uh, essentially I need to get sent home for a bit, um, during the quarantine period and, um, employers are required to provide notices of, um, all of these policies and requirements to employees.

Um, Assuming these go into effect on the date that OSHA initially intended December 5th would be the deadline for, um, employers to release these policies to employees, um, track the vaccination status of employees and enforce masking. Um, and notification of positive tests and then January 4th would be the requirement for either a full implementation of vaccination or weekly testing.

Again, this is all on pause at the moment, but those dates may still, um, essentially come about as, as intended. So, what do you need to do? First things. First employers need to start making decisions around what types of policies they would implement. And again, even though there’s a temporary stay on this order, I would recommend employers start thinking about these things.

There are templates available on OSHA’s website and the templates include all of the necessary details required by the standard in terms of what needs to be included in that policy. Employers will also want to start thinking about whether they want to issue a full vaccine requirement for their employees or a partial vaccine requirement or no vaccine requirement.

And there’s different ramifications of each in a full vaccine requirement that would mean employees essentially need to get vaccinated or potentially would lose their jobs. Again, that’s the employer’s choice to choose a path along those lines. In a partial of vaccine requirement, employers could choose to have some groups of employees required to be vaccinated and other groups not.

And, uh, and then a non vaccination requirement policy employers could, uh, essentially not require employees get the vaccine, but, um, Any employees who aren’t vaccinated under these requirements essentially would need to go through the weekly testing and wearing a mask. When they’re indoors working with others, riding in a car with others, things along those lines, they’ll need to, uh, develop a system for tracking vaccination status and require employees to provide proof of vaccination.

A list of all of the different things is available, um, that employees can use to. Uh, proved their vaccination status is available on OSHA’s website. Employers will also need to create a roster of employees by vaccination status, whether it’s fully vaccinated, um, partially vaccinated, not vaccinated because of a medical or religious exemption or not vaccinated by.

Um, they’ll need to provide sick, leave for employees to get vaccinated and deal with any side effects. So generally speaking up to four hours to get vaccinated and the side effects part of it depends. So this might be in addition to whatever sick time you’re offering your employees. And whether you’re vaccinated or not, employees who test positive for COVID-19 are required to report it to their employer.

And like I said earlier might be, uh, removed from the workplace for a period of time, depending on their individual situation and CDC. Couple of frequently asked questions we’ve been seeing across the board. Um, and again, there’s a whole lot more information on OSHA’s website, but what about Texas and maybe other states that prohibit vaccine mandates, um, in the initial order, OSHA has stated that, um, it has the authority to supersede these state level laws.

Um, I expect that probably will end up being the case depending on the outcome of the current, uh, legal challenge. Um, another sort of question that’s popped up a lot, my employer or my city, or, um, my state actually requires everyone to wear masks indoors. So even if I’m vaccinated, does this mean I still have to wear a mask indoors?

And the answer is yes. Uh, essentially this law isn’t meant to diminish any state and local laws that are designed to protect workers and people in a public setting. So to the extent there’s something more stringent in your location. I would recommend continuing to follow that. Can employers enact policies beyond the requirements of the standard?

So. If I choose as a company, is it our right for me to make something that’s a little more stringent than the actual requirement? And the answer is yes, OSHA has put forth minimum standards and employers, uh, are free to enact policies that are even more stringent, like requiring all employees, B vaccine.

Here’s kind of a big one that we’re seeing a lot of, um, who counts towards that a hundred employee requirements. So again, this, um, these statutes are the standard actually applies to companies that have a hundred or more employees based in the U S um, a couple, uh, lists of like, sort of who’s in who’s out.

So if I’m, if I’m a franchise, uh, say I own a couple of McDonald’s franchises. If my franchise, oh, or employees 100 or more people than I’m, I would be covered under this. If my franchise itself owns fewer than a hundred employees, it may not be covered by this, even though McDonald’s definitely has more than a hundred employees do part-time employees count?

Yes. So if I’ve got 75 full-time employees, 25 part-time employees, guess what? I’ve got a hundred employees and my company is now subject. How about independent contractors? The answer is no, essentially we’re looking at who has the employment relationship and along those same lines, staffing agency, employees might not apply towards this.

So, um, if, uh, an employee is a temporary employee who is technically employed by a staffing agency, working for you, um, They’re an employee of the staffing agency for counting purposes. Not necessarily. Um, you now, if you happen to be a staffing agency, then all of your employees out on assignment potentially are considered part of that a hundred employees.

Uh, work from home employees. Yes. They count towards the count, even though some of the requirements may not apply to them and seasonal employees. Yes. So it’s possible for some companies to have more than a hundred employees at times, and fewer than a hundred employees at times, based on the, um, based on seasonality and employment.

Um, however, if they have a hundred employees at the time, this goes into effect, they should probably have. And then lastly, what about, I’ve got a policy that already talks about how people are supposed to behave in the workplace around masks and vaccines, et cetera. Do I need to create another policy? My guidance here in OSHA’s guidance here is review your current policy against the OSHA requirements.

And to the extent you need to make any modifications or changes. To your policy to match the OSHA standards that’s recommended you do. So you’re not necessarily required to have two separate policies. Uh, but the policy that you do have should be compliant with OSHA.

Do you have a question for our experts? Click the link in the show notes, or if you’ve got other ideas and feedback about our show, send them to podcast at Zenefits. Dot com.

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