Hank Stolz : As you well know, and we have talked about, the lawsuits are flying right now, and a federal appeals court has temporarily suspended the Biden administration’s vaccine mandate. But what do we need to know? What do you need to know as an employer, as an employee, about that vaccine mandate. The president is saying, “Hey employers, go ahead and start putting this into effect.”
So, OSHA has announced last week, a rule that would require all employers of a hundred or more employees to ensure that, by January 4th, all workers have been vaccinated against the coronavirus or were tested weekly. As a said, as you know, as we’ve talked about, the legal challenges are flying. But really, let’s give you some straight dope, and the real information that you need to know on this.
Remember don’t trust your buddy, Uncle Louie, there on the bar stool next to you. He thinks he knows all the answers. He does not. That’s why we have, joining us right now, from Complete Payroll Solutions, Karyn Rhodes, Vice President/Director, Complete HR Solutions.
Hank Stolz : Let’s just start in with, what exactly is being asked of employers. What are these latest OSHA Emergency Standards? What is it that OSHA is telling employers they need to do by January 4th?
Karyn Rhodes: So, this new Emergency Standard, and as you did mention, the federal appeals court has temporary blocked it, for now. And we expect that this is going to go back and forth for a while. There are legal challenges to this.
The courts so far have upheld the right to put forward a rule like this. So, I’m going to be very surprised if it’s pulled back significantly. But right now, employers, a hundred plus, includes temporary workers, part-time people. You have to add those together. A hundred plus, if you hit that mark at any time, you’re on the hook for this.
So, generally employers need to check vaccination status. Not only check it, but collect evidence, collect a copy of the record. They need to implement either a mandatory or a vaccination test/mask policy. They need to provide information to employees on fraudulent reporting, whistleblower protections, and the benefits of vaccinations from the CDC. Need to provide some paid time off for people to get vaccinated and recover, require employees not vaccinated to submit to at least weekly testing and face coverings. Also employers need to require employees to notify the employer immediately if somebody’s COVID positive. Employers need to immediately remove someone until they meet the CDC criteria to return. And then, finally maintain records, report any work-related COVID deaths and hospitalizations, which OSHA currently does, anyway.
Hank Stolz : Karen, this is… The companies that have to do this, this is just the companies that are a hundred employees, or should all companies be taking a look at doing this, and complying.
Karyn Rhodes: Right. OSHA, right now, is saying a hundred plus is mandated to do this. However, Fed OSHA has said, on a call a few weeks ago that I had with them, that employers under a hundred will still be held to the same standard. So, they just don’t want to stress out, administratively, companies under a hundred. But our recommendation for employers is that they follow this protocol. If there is an exposure, and I’m hearing out there, several companies have several exposures going on, OSHA can come in, and if they don’t have standards such as this in place, there’s going to be a fine.
Hank Stolz : This is something that, of course, all companies paying attention to. January 4th. Is that the date that we have to pay attention to? Are there other dates that companies, employers, need to be aware of?
UNDERSTANDING VACCINATION STATUS
Karyn Rhodes: Right now, there’s two dates that people need to keep in mind. The first date is December 5th.
On December 5th, employers need to understand the vaccination status, have proof of people who are vaccinated, and then anyone that’s un-vaccinated need to start wearing masks in the work environment. January 4th, right now, is the second date. So, if employees are not fully vaccinated by January 4th, that’s when the testing protocol needs to start. And employers need to keep copies of the test results. They need to keep copies of the dates. So, they need to think through now, do they have an HRS system or payroll system that can support that? How are they going to handle that?
As you can imagine, using an Excel type of spreadsheet will get pretty unruly, pretty fast. They’re going to have to run reports so they can understand if two people last week didn’t get a test result in, that they figure out how they’re going to deal with that.
These dates may shift because of the back and forth that we are seeing with lawsuits as the courts work through this. So, we may see these dates shift a little bit. But my advice, right now, is to have these two dates in mind, December 5th is right around the corner, and have a plan in place on how they’re going to start gathering this information.
COSTS TO EMPLOYEE
Hank Stolz : The employee has to pay for that test, if they decide that they aren’t going to get vaccinated, but they want to be in compliance, and they’re going to use the option to take the test. They have to pay for that? Or is the employer on the hook in some way?
Karyn Rhodes: So the employer’s not on the hook. They don’t have to pay unless they’re required by some other state or federal agency right now, especially in the Northeast, there is no state that is requiring that. So, it’s definitely on the employee. And a lot of the state sites are still open. They can go get free tests. They cannot do home testing. That’s one thing that’s prohibited under the standard. So you can’t get an over-the-counter test, do it at home, and then submit that to your employer.
Hank Stolz: Karen, this has become a real blue-state/ red-state struggle. Are there states that have different laws? I know that there are some states where the state legislature passes these laws that prohibit vaccine mandates. How does that affect what OSHA, what the Biden administration, is telling us?
Karyn Rhodes: Right now, there are some states, as you said, are prohibiting. Alabama, Texas, Arizona, Montana, West Virginia, Iowa, as of yesterday, are suing, prohibiting vaccination status. OSHA is saying, regardless of what your state statute is, we trump that. So, basically, the ETS that goes in place overrules any state piece of legislation, unless that legislation goes even further than this emergency temporary standard in regard to regulation. OSHA’s saying that this is going to apply to everyone at a federal level. So, no one’s off the hook with this.
Hank Stolz : Are employees able to say, “Hey, religious exemption,” or “I believe that I may be allergic,” or there’s a compelling reason they can petition and say, “Hey, there’s a compelling reason why I don’t want to get this.” And does that get taken into account? Or this is a, “It’s a mandate. You will get either the vaccine or show us that you have taken the test.”
Karyn Rhodes: This is where it gets very complicated, Hank. If an employer decides to mandate the vaccine, and that’s their policy, and an employee says, “I have a firmly held religious belief,” or “I’ve got a medical situation and can’t get vaccinated,” that’s where the employer has to go through this interactive process with the employee to see if they can reasonably accommodate that, or not.
Now, when it comes to this Emergency Temporary Standard through OSHA, that’s put to the side, and the only people that are exempt under this Emergency Temporary Standard are people who work alone at all times, people who work a hundred percent remotely, or people who work outside, and that’s not really well-defined yet, but outside, not in a building or facility. Those people are exempt from this standard. But, if you have someone that’s got maybe a medical situation or a firmly held religious belief, they’re going to have to go through the testing protocol. They’re going to have to start wearing masks. So, they will not be exempted from this.
Hank Stolz: Is it up to the employer, employee fakes a vax card, for example, or doesn’t tell their employer that they have COVID? Is that up to the employer to discipline? Or is that… OSHA got some guidelines for that as well?
Karyn Rhodes: OSHA does have some guidelines in regard to that. They have put out a very strong standard in this ETS that says that, if you falsify any information, there are criminal penalties involved here, $10,000 fine, six months in prison. If you knowingly are willingly falsified information, it could be up to five years in prison. So, there is definite teeth in that. Now, in regard to COVID positive, employees under this standard are required to give notice if they are COVID positive. So, that is a mandate under this regulation.
GET IN TOUCH
Hank Stolz : All right. We just have a minute left. And we’re speaking with Karen Rhodes, Vice President/Director, Complete HR Solutions.
What else do people need to know? Where can they use some of the complete payroll solutions, get some information from you, and continue to check in to make sure they’re in compliance.
Karyn Rhodes: They can call our hotline, which is (888) 909-6596. They could also email me directly, krhodes, R-H-O-D-E-S, @completepayrollsolutions.com.
OSHA has released policies and all of the sample notices that I’m happy to give to people. Or just go on the OSHA site. They’re all there.
Hank Stolz : Very good. Karen, thank you so much for giving us the information that we need to know, and giving us the straight dope on this.
Karyn Rhodes: My pleasure. Have a great day.