The Emergency Temporary Standard (ETS), newly issued by the Occupational Safety and Health Administration (OSHA), requires compliance by all companies with over 100 employees. This rule establishes new regulations associated with employers’ COVID-19 safety standards and has firm deadlines to maintain compliance
To aid companies that may be affected by the ETS, this guide, which includes common questions and answers, will assist in navigating this new OSHA standard.
- What actions must employers take within the next thirty (30) days (by SUNDAY, December 5, 2021)?
- Provide mandatory information to employees which includes:
- A statement regarding the requirements of the ETS and the Company’s policies and procedures regarding the ETS;
- Information regarding the protections to employees against retaliation and discrimination; AND
- Information about laws providing for criminal penalties for knowingly supplying false statements or COVID-19 documentation.
It is not sufficient to post the ETS in your breakroom or email it to all employees. This ETS requires that companies institute a written policy and procedure document that incorporates the ETS’ requirements and stipulates how those will be applied throughout the Company. Failure to furnish this information to employees by Sunday, December 5, 2021, could result in fines for non-compliance with OSHA’s ETS.
- Comply with regulations related to time off which includes:
- Providing the required notice to employees that they will receive four (4) hours of paid time off to receive the vaccination (for a 1 shot regimen) and an additional four (4) hours for the second injection, if required;
- Allowing an employee sufficient PTO to recover from any side effects as a result of the vaccination; AND
- Developing and disseminating a policy regarding guidelines for returning to the office for an employee who has previously tested positive for COVID-19. This policy must be clearly stated so that employees know when they are permitted to return to work after testing positive and recovering from COVID-19. There are no defined parameters within the ETS, but it is advisable to consider the CDC’s guidelines when preparing this policy.
- Implement a mask mandate for employees who are not fully vaccinated. This mandate must require that:
- All employees who are not vaccinated (2 shots for Pfizer and Moderna; 1 shot for Johnson and Johnson), must wear a mask, at all times, while indoors.
- All employees must also wear masks if they are not fully vaccinated and are in a vehicle with another person for work purposes.
There are currently no exemptions for social distancing or sitting in an enclosed office. The ETS states that the Company is required to “ensure that each employee who is not fully vaccinated wears a face covering when indoors…”
The mask mandate is required to be instituted by employers by December 5, 2021. Further, Employers are required to implement policies and procedures that ensure that their employees are compliant with this mask mandate.
- Require proof of current (and future) employee’s vaccination records
- Employers must begin obtaining “acceptable” proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
- All new hires should be asked their vaccination status during their initial interviews and must provide a copy of their proof of vaccination.
OSHA can, and will, request this information during an inspection. Employers should err on the side of caution and have all employees send their vaccination cards to the company’s Human Resources representative for storage in their medical records file. The Employer should maintain an updated list of each employee and their vaccination status.
2. What actions must employers take within sixty (60) days? (by TUESDAY, January 4, 2022)?
- Mandatory testing begins for unvaccinated employees
- By January 4, 2022, if an employee is not fully vaccinated, then the employer must require that employee undergo COVID-19 testing in seven (7) day cycles.
- Employers are not required to pay for the testing or allow for paid time off for unvaccinated employees to obtain tests.
- It is advisable for Employers to consider their workforce and in order to avoid a more significant impact due to the labor shortage for certain industries, employers may offer to purchase tests from the local pharmacies and provide them to employees at the end of business on Friday for the employees to take within twenty-four hours of their shift to begin on Monday morning.
- Employers are required to maintain the employee’s test results and therefore must ask for a copy of the employee’s negative test results to put into the employee’s file.
3. Are there any exemptions?
- Medical and religious
- Employees may apply for reasonable accommodations regarding the COVID-19 vaccine on the basis of medical or religious reasons. In the policy that is due on December 5, 2021 Employers should provide mechanisms for employees to apply for exemption status and the deadline to submit those exemptions. However, and to note, there are no known religious or medical reasons to avoid the COVID-19 tests, so even if an employee does satisfy a medical or religious exemption from the vaccine, the employee must still undergo testing weekly.
- Remote workers
- The ETS does not apply to solely remote employees who do not go to the office. However, if an unvaccinated employee, is required to be in the office at any time the employee would have to produce a negative test result prior to being permitted in the workplace.
4. What are the consequences for not complying with OSHA’s ETS?
OSHA can fine an Employer $13,653.00 per violation. For example, if an Employer is cited for three unvaccinated persons working indoors and not wearing masks, then the Employer could be fined for each one separately totaling $40,959.00.
If OSHA determines that an Employer is willfully violating its ETS, then it can fine up to $136,532.00 per violation.
5. For Your Information
Employers are required to report any COVID-19 employee hospitalizations directly to OSHA within twenty-four (24) hours of finding out about the hospitalization. If an employee dies from COVID-19, the Employer is required to notify OSHA within eight (8) hours of finding out about the Employee’s death.
Employers are required to make available to employees and their representatives the aggregate number of fully vaccinated employees within the workplace along with the total number of employees at that workplace. Since this provision states specifically “at that workplace”, an Employer with employees at multiple locations is required to provide this information for each separate location.
6. Where do we go from here?
While the lawsuits snake their way through the legal systems, employers must take action to ensure compliance and to avoid any fines or complaints for noncompliance. Employers should not wait and see if an injunction is issued that may delay these deadlines. Given the proximity to the holiday season, employers need to be prepared and ready to comply.
Questions? Contact us!
If you have any questions or need assistance in preparing a policy that complies with the ETS, please do not hesitate to contact our labor and employment attorneys at Shuffield, Lowman & Wilson, P.A. We look forward to helping you protect your business!
Following President Biden’s late-day bombshell of a press interview on Thursday, September 9, 2021, employers frantically researched various policies and standards over the weekend. The dilemma facing many employers includes the current labor force shortage juxtaposed against the politically charged vaccination efforts. While OSHA can, and will, fine employers for failing to provide safe and healthy work environments for their employees, those requirements typically include such regulations such as wearing steel-toed boots and hard hats during work hours, yellow vests while entering work floors, or the prohibition of wearing jewelry in and around certain equipment. These logical requirements, while not preferred by some or maybe even most employees, are at least justifiable for why such measures are required and easily explained by employers. But, how far can the government legislate to promote the health and safety of employees? The above-cited examples do not impact a worker’s bodily integrity, do not violate an employee’s religious or medical rights (for the most part) and the consequences for noncompliance are easily understood. Indeed, if you wear a 30-inch necklace that gets caught in a printing machine, you could lose your head. That type of consequence is real, and employees understand them.
With the COVID-19 vaccine, there is no quantifiable consequence. The research shows that a fully vaccinated person can still be a carrier of the virus and infect other individuals. Also, and as new strains develop, vaccinated persons are not immune from catching the virus. Employers may find it difficult to justify to their workforce the purpose of these rules. Unfortunately, the consequences for abstaining from the vaccine are too intangible for an employer to justify the reasoning behind requiring vaccinations of all employees. The only explanation an employer may provide at this juncture is, “because the government requires it.” This serves as a drastic contrast to previous OSHA standards where the prevented harm is foreseeable.
Despite its intangible consequences, the Federal Government, using health and safety standards concerns intends to require that all employees of companies exceeding 100 employees must obtain a COVID-19 vaccine. But in today’s climate with the politically charged controversy enveloping the COVID-19 vaccines, a deficient labor force, and unclear consequences for failing to obtain the COVID-19 vaccine, can OSHA enforce a mandate such as one proposed by President Biden? Historically, OSHA has neglected to institute a similar mandate relating to the annual influenza vaccine. While it “expects facilities providing healthcare services to perform a risk assessment of their workplace and encourages healthcare employers to offer both the seasonal and H1N1 vaccine…OSHA does not specifically require employees to take the vaccines, an employer may do so.” See 2009 OSHA Letter regarding Influenza Vaccine Mandate. All OSHA standards through the present instituted mandates related to uniform or attire standards worn by workers, and various requirements concerning spacing and location of machinery, the storage of categorized materials such as chemicals, and conducted inspections of various employer’s facilities to ensure compliance with its imposed industry standards. Until now, OSHA has declined to require vaccinations and has left that decision up to individual employers.
While Biden’s speech failed to provide exemptions for the vaccine based on religious or health-related grounds, he does state that employees who refuse to get vaccinated must be tested once per week. Testing allows objectors to the vaccine to continue employment by providing an exception, but President Biden failed to articulate who would bear the cost of the testing, if the employer would be required to pay the employee to take time off to take the test, and how the employer is required to maintain the test results from the employee.
This latest policy by the federal government leaves employers nervously wondering – Can the Government require such measures? In the interest of public health and safety, where is the line drawn? OSHA historically has declined to require vaccines by employees. This deviation from prior policy will assuredly lead to a mass influx of litigation instituted to contest the enforceability of such measures. This litigation will largely come down to the interpretation of the federal government’s justification that it has the ability to require individual Americans to obtain the COVID-19 vaccine. However, and while these measures snake through the slow channels of the courts, what are employers supposed to do right now? Today?
Right now, employers should wait until further guidance is published by OSHA. A rule has not been promulgated yet. Until then, we can only hypothesize what the proposed rule from OSHA will include based on the content within the President’s speech.
Unfortunately, President Biden’s speech left open insurmountable questions that are simply just not available at this time. For instance, how many employees equal 100? Does that include independent contractors? What about part-time employees? What about subsidiaries and any employees classified as working with those subsidiaries – are they counted towards the 100? What are the OSHA fines associated with refusing to enforce COVID-19 vaccines within its workplace? (Reports state that fines could be up to $14,000.00 but is that per employee, per inspection, and a finding of non-compliance, or as a total?) Will refusal to institute such requirements make more sense in an employer’s cost-benefit analysis than potentially alienating employees who may quit their job in response? How will OSHA conduct inspections into whether or not the workforce of an eligible employer is compliant? Are employers fined for employees refusing to obtain the vaccine requiring the employers to terminate their employees? When will these rules go into effect? These questions may be answered following OSHA’s new rule which is forthcoming according to various reports.
Inevitably, Courts must grapple with the differing political ideologies on the COVID-19 vaccine and will be the ultimate decider in this evolving landscape debate between personal integrity v. worldwide health and safety concerns. Here in Florida, a Leon County Circuit Court Judge determined that the Governor overstepped his authority in instituting a ban against mask-wearing mandates for education facilities. See Governor Ron DeSantis, et al. v. Allison Scott, et al., Case No. 2021-CA-1382, Leon County Civil Circuit Court. On appeal, the First District Court of Appeals issued a one-page ruling quashing the stay and stating that “we have serious doubts about standing, jurisdiction, and other threshold matters. These doubts significantly militate against the likelihood of the appellee’s ultimate success in this appeal.” See September 10, 2021 Order. The stay, while remaining in place for the purposes of the appeal, is evidence that the Court of Appeals could rule in favor of Governor DeSantis having authority to institute a statewide ban on mask mandates for Florida school districts.
Conversely, a Southern District Court Judge intervened against a law that prevented cruise liners from requiring customers to be fully vaccinated prior to sailing with the cruise liners. That Judge states that such measures violate a business’ integrity as companies attempt to “reopen.” See Judge Kathleen Williams’ Order in Norwegian Cruise Line Holdings, Ltd., et al. v. Scott Rivkees, M.D., Case No. 21-CV- 22492-KMW (S.D. Fla. 2021). While this Court Order directly analyzed the cruising industry with particularity, the reasoning behind the Order could apply across many industries. What seems to be the essence of these most recent orders is that the government should refrain from prohibiting or legislating vaccine bans or mandates. Judge Williams’ order has been appealed and is presently pending before the United States 11th Circuit and will likely be addressed by the Supreme Court of the United States.
Ultimately, this unpredictable and expensive litigation provides little to no relief to frustrated employers who simply want to go about their business and avoid politics in the workplace. Unfortunately, for both employers and employees, it appears that avoiding these contentious discussions will soon come to an end and many business owners are going to have to make difficult choices moving forward.
The labor and employment attorneys at Shuffield, Lowman & Wilson are happy to answer any questions and assist with preparing policies to protect your company and your workforce so that you can focus on your business.
Congratulations! You successfully navigated the Paycheck Protection Program (PPP) loan application process and you were awarded a loan from the SBA. You have spent all the funds in accordance with your advisor’s recommendations and your business’ needs. Now you would like to apply for forgiveness of that loan to turn it into a grant. What do you need to know and what actions do you need to take? Have no fear, the SBA recently issued additional guidance in the form of FAQs to assist you.
Will you need to submit documents with original signatures in ink? It is acceptable to submit digital or scanned copies of any applications or supporting documentation for your loan forgiveness request. Any signatures or consents that you need to provide may also be completed electronically. You should check with your lender/servicer, to make sure their internal rules also allow for this.
If you submit your forgiveness application during the 10-month period after the covered period of your loan ends, then you will not be required to make any loan payments until the forgiveness amount is determined by your lender.
You may elect an Alternative Payroll Covered Period if that aligns better with your payroll practices than the standard Covered Period. Payroll costs incurred during the period are eligible for forgiveness if they are paid by the following payroll date after your period ends.
If you took an Economic Injury Disaster Loan (EIDL) advance, then that amount will reduce any amount of loan forgiveness that you qualify for. If the amount of your EIDL advance exceeds your PPP loan amount, then you will not qualify for any forgiveness.
One important point to remember is that forgiveness is not all or nothing. You may obtain partial forgiveness for the portion of your loan that was expended on allowable expenses and otherwise qualifies under the workforce retention guidelines. If you only qualify for partial forgiveness, then your lender is required to: (1) notify you of the amount of your PPP loan that will not be forgiven, (2) notify you of the date that you are required to start making loan payments, and (3) continue to service your loan over its term.
When should you apply for forgiveness? Many businesses are waiting to file the application for forgiveness since SBA may continue to issue new regulations. Additionally, it appears that another coronavirus relief package is in the works in Congress. It is certainly possible that a new relief package could change the parameters around receiving forgiveness. You may wish to wait a little longer so that there is more certainty before you apply. You should discuss the timing of your forgiveness request with your advisors.
What if you don’t agree with a decision that SBA has made related to your PPP loan or forgiveness of it? There is a process to appeal any decision made by the SBA that negatively impacts you. For instance, SBA is reviewing PPP loans to determine whether the borrower was eligible for all or a portion of the loan they received, if the funds were spent appropriately, to what extent you qualify for forgiveness, etc. If you decide that you need to appeal, then you must include quite a bit of information with your appeal request (copy of the decision you are appealing, a statement of your position, the relief you are requesting, copies of tax filings for your payroll, and additional tax records). You may want to seek help from a trusted advisor to increase your chance of a successful appeal. For more information on PPP loan forgiveness guidelines, see our blog on that topic here.
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