*Disclaimer: The U.S. Court of Appeals for the 5th Circuit (based in New Orleans, LA) has issued a temporary, national injunction (pause) against the OSHA vaccine mandate. Republican Attorneys General in 26 states and other stakeholders have challenged the rule in federal court. The ruling and subsequent lawsuits put the timing in flux. As the legal process continues, HFA will continue to engage with federal policymakers to address member-directed questions.*
The Occupational Safety and Health Administration (OSHA) has released its highly anticipated emergency temporary standard (ETS) vaccine mandate for employers with more than 100 employees. The ETS goes into effect immediately, but OSHA is accepting public comments until December 6, 2021, and can amend the standard at any time. This standard preempts state and local laws – important context is that Florida Governor Ron DeSantis has challenged the ETS in court. In light of the legal challenges, we are providing members with an update on the federal standard and will provide further updates as the issue unfolds.
There are very limited exemptions to covered employees, and our interpretation is that furniture retail employees are very likely covered (assuming the employer has more than 100 employees). The exemption is listed as follows, ‘The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors.’
Covered employers are now required to ‘develop, implement, and enforce’ a mandatory COVID-19 vaccination policy – the alternative to the vaccination requirement is requiring unvaccinated employees to submit weekly COVID testing and wear a face-covering in the workplace. Employers will be responsible for determining vaccination status, verifying that status, and maintaining records for those employees. The deadline for the vaccination requirement is January 4, 2022. Unvaccinated employees must wear face masks while working indoors beginning December 5, 2021.
Additional employer responsibilities include providing up to 4 hours of paid leave for employees to receive each vaccine dose as well as necessary sick time to recover from any side effects. The ETS does not require employers to pay for the cost of weekly testing unless covered by other laws/policies, i.e., collective agreement. The weekly testing is in place for any unvaccinated employee in the workplace at least one day per week or an employee who has been out of the workplace for a week or longer.
HFA will be engaging with our members along with federal agencies and policymakers to discuss impacts to our industry. There is a broader concern about the impact the vaccine mandate will have on ongoing workforce challenges. We are considering submitting formal comments to OSHA based on these factors.