In November, the Fifth Circuit Court suspended the Occupational Safety and Health’s Emergency Temporary Standard (ETS) which mandated a “vaccinate or mask and test” program for all employers with more than 100 workers. Fines for those who did not comply with President Joe Biden’s vaccine mandate were threatened with fines if the mandate were put in place.
But that proposed OSHA emergency measure went before the Sixth Circuit Court on December 17 and the vaccine mandate is back for businesses with more than 100 employees. OSHA plans to begin enforcement on January 10, 2022.
The emergency standard is being fought by the state of Georgia and other plaintiffs, who have brought the case to the Supreme Court. While this appeal might end the ETS, it is unlikely a decision will come before it is enforced on January 10.
Non-compliant businesses will be fined and if the violation is deemed serious, it can cost as much as $13,653 per incident. OSHA can also fine employers up to $136,532 for willful repeated violations.
This creates a difficult situation for many employers, who may have a few or many workers who have decided not to get vaccinated. In the current market, there are many jobs that have been left unfilled, so employers may be concerned about taking a hard line with the staff.
There is some room for employers who are trying to get up to date, who will be given till February 9, 2022. A plan needs to be in place on how to track weekly testing for non-vaccinated employees.
What needs to be done by January 10 for businesses with over 100 workers:
- Have a policy in keeping with emergency temporary standard. Many businesses already have a Covid safety policy, but this will have to be compliant with OSHA’s ETS.
- Vaccine data needs to be collected. There needs to be record of those who have received two shots as that is still considered vaccinated. It is not a violation of HIPAA rules – Health Insurance Portability and Accountability Act – to see the card or keep document it.
- Masks need to be mandated for the unvaccinated workers.
- Unvaccinated workers need to be tested weekly. The testing needs to be documented and records need to be kept.
- Thoe who test positive need to go home right away.
- Buy disposable masks for people who work on-site.
- Remember, regardless of the vaccine mandate, there are legitimate health and religious exemptions. These will need to be included in the workplace policy.
- On-site, unannounced visits from OSHA to check on employer compliance will not begin February 10.
The Philadelphia employment lawyers at the offices of Sidney L. Gold & Associates, P.C., understand the challenges the pandemic and the changing laws in response to it, present for the workplace. With offices in Philadelphia, Pennsylvania and Pennsauken, New Jersey, we serve clients throughout Pennsylvania and New Jersey. Set up an appointment by calling 215-569-1999 or contact us online.