On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a new emergency temporary standard (ETS). The ETS requires certain employers adopt a policy mandating employees be vaccinated or undergo weekly COVID-19 testing.
The ETS is effective November 5, 2021, but employers have an additional 30 days (until December 5, 2021) to put their policies in place. Employers must require employees be vaccinated or undergo weekly COVID-19 testing no later than January 4, 2022.
The ETS applies to employers with 100 or more employees.
The ETS clarifies that it does not matter whether an employer drops below 100 employees, so long as it has 100 or more employees at any time the ETS is in effect. See Federal Register 86:212, p. 61551 (Nov. 5, 2021). In other words, if on November 5, 2021 or any date thereafter while the ETS is in effect, an employer has 100 employees, then the employer is subject to the ETS.
For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold.
In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.
In other situations, two or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.
Part-time employees are included in determining whether the employer has 100 total employees.
Vaccine and Testing Policy
Among other requirements, employers subject to the ETS must collect and maintain proof of vaccination or proof of weekly testing. Employers must provide paid leave for employees to obtain the vaccine (up to four hours of paid time for each dose).
Penalties for Violation of the ETS
If an employer violates the ETS, it can be fined up to $13,653 per violation. If the violation is willful or repeated, it can be fined up to $136,532 per violation. https://www.osha.gov/penalties
If you need assistance with addressing this or other issues relating to COVID-19 requirements on your business, please feel free to contact Reno & Zahm LLP.