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11.4.21 COVID-19 Bulletin: OSHA Releases “Vax or Test” Rule: What You Need to Know

On September 9th, President Joe Biden announced a new mandate: all employers with 100 or more employees must ensure their workforce is fully vaccinated or require weekly testing of unvaccinated workers.   

On November 4th, OSHA released its formal rule, providing clarity on what will be expected of employers.  

The full OSHA rule can be found here: https://www.osha.gov/coronavirus/ets2  

On December 2nd, the BNP hosted Next Steps: OSHA’s Vaccine or Test Rule for Employers – watch the webisode HERE.

To help your organization understand these new rules, the BNP has compiled a guide to frequently asked questions below.  

Disclaimer: This guide is for informational and educational use only, and should not be considered legal advice. Legal advice is based on the specific facts of a client’s situation and must be obtained by individual consultation with a lawyer. 

1. What does the rule require? 

All employers with 100 or more employees must ensure their workforce is fully vaccinated or require weekly testing of unvaccinated workers.  If employers give employees a choice between vaccination and weekly testing, those employees opting for weekly testing must be required to wear a face covering while at work.  

2. The rule applies to employers with over 100 employees. How are full-time and part-time employees counted? 

Part-time employees do count toward the total number of employees. However, Independent contractors do not count toward the total number of employees. 

3. Is the 100-employee threshold counted per location, or collectively? 

Collectively. OSHA will use the “enterprise rule,” meaning all employees associated with the entire enterprise will be counted together.  

4. Are employers responsible for administering tests to unvaccinated employees? Who is responsible for the cost of testing? 

No, employers are not responsible for administering tests to unvaccinated employees, although offering on-site testing to employees may make the process quicker and simpler. Employees are responsible for paying for their own tests. Companies are able to bill employees for COVID-19 testing on site. 

5. Are employers required to provide paid time off for vaccination or testing? 

Employers are required to provide paid time off for an employee getting vaccinated (up to four hours per vaccine). Employers are not required to provide paid time off for an employee getting tested. Employers are also required to provide paid sick leave to employees recovering from the side effects of the vaccine. A reminder:  paid time off mandates related to COVID-19 vaccines already exist in New York State.  

6. How long should I keep a record of employees’ negative tests? 

The employer must maintain a record of each test result which must be maintained and preserved while the rule remains in effect. 

7. By when must employees be vaccinated or test under this rule? 

The rule takes effect on January 4, 2022.  

8. What is expected of contractors who do business with the federal government? 

Under a different Executive Order and Safer Federal Workforce guidelines, federal agencies will add a requirement to contracts that on-site contractor employees are all vaccinated. Unvaccinated employees of contractors with preexisting contracts must mask and test regularly. The Executive Order states that this rule does not apply to grants.   

9. What is the penalty for an employer that is not in compliance with this rule? 

Employers who do not comply can be fined $13,653 for each violation.  

10. How should I handle employees who claim a belief or physical limitation prevents them from being able to take the vaccine? 

If employees refuse the vaccine, employers must implement mandatory weekly testing and mask wearing. 

11. Are employees who tested positive for COVID-19 in the past exempt from this requirement? 

No, the rule does not make an exception for those with immunity through a prior COVID case.  

12. If I mandate that my employees get the COVID-19 vaccine, can I be held liable for any possible adverse reactions an employee may experience from the vaccine? 

Employees who have an adverse reaction to a vaccine taken as a condition of employment may be eligible for worker’s compensation. Employers should also give paid time for workers to get vaccinated or recover from any side effects. An attorney should be consulted to address specific situations and questions.  

13. Is this rule constitutional? 

Heavy litigation is expected to challenge the legality of this rule. The BNP will keep you aware should any judicial updates change what is required of you by the federal government.  

Additional Resources 

If you have additional questions, contact our staff or utilize the BNP Business Link. 

All BN region employers should also have plans in place as outlined in the NY HERO Act.  

The BNP recently hosted an informational seminar on the federal vaccine mandate, which included expert insight from Alcott HR. View the episode here. 

The BNP also hosted a three-part series called “Preparing Your Business for COVID-19 Vaccines,” which is available here. 

Our COVID-19 Resources page has plenty of information on vaccine access, education, policy, and communications.  

Lastly, the BNP can assist you in setting up a vaccination clinic on site at your workplace. To do so, please fill out our interest form.  

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The Buffalo Niagara Partnership is committed to providing employers with the latest information and resources to help you deal with COVID-19 and its impact on our community, state and nation. Visit our Events and Resource pages as they are updated regularly to provide you with the most current information.

Do you have specific questions related to running your business or your business unit? Visit the BNP Business Link, a question and answer forum for, and by, the Buffalo Niagara business community.  Submit your questions and get expert answers on just about any topic from legal, IT, HR, NYS regulations, sales, marketing, communications and more.  It is quick, confidential, powerful and convenient.

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