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On Nov. 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring employers with more than 100 employees to develop, implement and enforce a COVID-19 vaccination policy. The mandate’s fate remains in question as intense legal activity surrounding it will likely send it to the Supreme Court. NMPF has been engaged with federal officials throughout, protecting dairy interests as the controversial measure plays out.

To assist in compliance, OSHA has provided two templates for employers. One for employers that mandate all employees get vaccinated and the other for employers that give employees the option to get vaccinated or wear a face covering and submit weekly negative COVID-19 test results. OSHA is suggesting that employers incorporate one of these templates into their existing COVID-19 policies.

The following outlines the standard’s requirements and deadlines. OSHA has agreed not to enforce these requirements as long as the nationwide 5th Circuit Court of Appeals stay is in effect.

By Jan. 10, 2022:

Employers with 100 or more employees must:

1. Collect each employee’s vaccination status
2. Require unvaccinated employees to wear masks
3. Educate employees on and promote the benefits of the COVID-19 vaccine
4. Require employees who are COVID-19 positive to quarantine, as well as set protocols for dealing with the COVID-19 positive employees

By Feb. 9, 2022:

Employers with 100 or more employees must begin requiring testing of unvaccinated employees weekly. (Note: Employers are not required to pay for testing).

FREQUENTLY ASKED QUESTIONS

Who is affected by the Covid-19 mandate?

Workers at companies with at least 100 employees will need to get vaccinated or produce a negative Covid-19 test weekly.

When does the vaccine mandate go into effect?

By Jan. 10, employers must ensure that unvaccinated employees wear masks in the workplace. Employers have until Feb. 9 to ensure their employees are vaccinated. After that date, employers must verify that unvaccinated employees test negative for Covid-19 at least once a week.

What proof of vaccination do employees need to show?

Employer have various options for acquiring proof of vaccination from each employee. For example, an employer may obtain a physical copy of a vaccination record, or they may allow employees to provide a digital copy of acceptable records.

Are employers responsible for paying for weekly Covid-19 tests for unvaccinated employees?

No. The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, collective bargaining agreements or other collectively negotiated agreements. The ETS also does not prohibit the employer from paying for costs associated with testing required by the ETS. Otherwise, OSHA leaves the decision regarding who pays for the testing to the employer.

What penalties do employers who don’t comply face?

OSHA can issue fines against employers, which are determined by whether there are willful violations and how often violations occur. The standard penalty is up to $13,653. Multiple fines are possible, and willful violations can lead to a maximum penalty of $136,532 per violation.

OTHER RESOURCES

• COVID-19 Vaccination and Testing ETS Homepage, S. Dept. of Labor
• COVID-19 Vaccination and Testing ETS FAQ, S. Dept. of Labor
• Key Things to Know About COVID-19 Vaccines, CDC
• Information for Employees on Penalties for False Statements and Records, OSHA
• Workers’ Rights under the COVID-19 Vaccination and Testing ETS, OSHA

NMPF expects the litigation will move swiftly, and the stay could be terminated any time after Dec. 10. NMPF advises members to be familiar with the issues, action and materials that will be needed should the stay be lifted. Please contact NMPF’s Clay Detlefsen at cdetlefsen@nmpf.org with any questions.