Yesterday, the Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard requiring all employers with 100 or more employees to create mandatory vaccination policies. Employers will also need to create comprehensive vaccination policies within the next thirty (30) days.

The new ETS from OSHA preempts states and local governments from either adopting or enforcing current workplace requirements relating to the occupational safety and health issues of vaccination, wearing masks and texting for COVID-19, unless a Federally-approved state plan has been authorized. The new ETS includes language that prohibits states and local governments from banning such workplace requirements. 

Below are some key items employers should know as this new standard takes effect. Governor DeSantis announced that the State of Florida will be filing a lawsuit and seeking an injunction to prevent this ETS from becoming effective. Until any stay of this ETS is put into place, Florida employers with 100 or more employees should be prepared to become federally compliant.

When Must Employers Become Complaint? 

All employers have 30 days from the date of publication of the ESI to comply with all requirements. However, employers have 60 days to ensure that employees who are not fully vaccinated are tested weekly.

What’s in a Mandatory Vaccination Policy?

According to the Department of Labor, a “mandatory vaccination policy is an employer policy requiring each employee to be fully vaccinated.” These policies must mandate vaccination unless an employee is entitled to a reasonable accommodation due to a disability, medical condition or sincerely held religious belief. If an employee does not fall into any of the excluded categories, they must be vaccinated or tested weekly.

Such a policy must require vaccination of all employees, other than those employees who fall into one of three categories: those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. As long as each employee that does not fall into one of those three categories is vaccinated, the written policy would still meet the definition of a mandatory vaccination policy.

Comprehensive vaccination policies should include:

• The effective date of the policy.
• To whom the policy applies.
• All deadlines for vaccination and/or testing.
• Requirements for COVID-19 vaccination.
• Applicable exclusions to the COVID-19 vaccination.
• Procedures for compliance and enforcement.
• Information on determining an employee’s vaccination status and how this information will be collected.
• Notification of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace
• Information available to employees and how this information will be distributed.
• Disciplinary actions for employees who refuse vaccination and/or testing.

What Must Employers Pay for Vaccination? 

Employers are required to support the cost of vaccination as well as providing reasonable time during work hours, at the employee’s regular rate of pay (up to four hours for each vaccination administration). Importantly, the time for each primary vaccination dose cannot be offset by accrued leave, such as paid sick leave or vacation time. This four-hour block of reasonable time includes:

• Time spent during work hours related to the vaccination appointment, such as registration or completing paper work;
• all time spent at the vaccination site; and
• all time spent traveling to and from the location for vaccination.  

Employers are not obligated to reimburse employees for transportation costs, such as train/bus fare or gas money.

What Are the Employer Obligations if Employees Experience Adverse Effects from Vaccination? 

If your employees have already accrued paid sick leave, then employers are permitted to require that the affected employee use this paid sick leave when taking time off to recover from any side effects following vaccination injection. If employers only have paid time off (not specifying between vacation pay and paid sick leave), then employers are permitted to require the employees use this leave to recover.

Employers are not permitted to charge employees with unearned paid sick leave should the employee run out of paid time off and continue to be absent from work due to recovery. At that point, employers should look to the Family Medical Leave Act for guidance.

What Information Must be Delivered to Employees?

Each employer must inform all employees, in the language and literacy which the employee understands:

• the requirements of this ETS
• the requirements of the employers’ Mandatory Vaccination Policy
• the process used to determine vaccination status
• entitlement to all paid leave time for compliance
• entitlement to leave to recover from any side effects
• procedures following a positive COVID-19 test
• procedures for requesting employee records
• any applicable COVID-19 related employment policy, such as mask requirements.
• Employee protection information under 29 CFR 1904.35(b)(1)(iv) (whistleblowing)

Employers should also provide employees with the CDC’s “Key Things to Know About COVID-19 Vaccines”.

What Happens if Employees Provide False Vaccination Documentation?

If an employee knowingly provides false statements or documents, the employee will be subject to criminal penalties under 18 U.S.C. § 1001 and of Section 17(g) of the OSH Act.

Contact a Florida Business Attorney to Draft Your Mandatory Vaccination Policy

The employment attorneys at The Walsh Law Firm, LLC in Florida are here to help you in drafting your Mandatory Vaccination Policy and staying up-to-date. Contact our office today to learn more about how we can help!