Vaccine Mandate Frequently Asked Questions (FAQ)

IMPORTANT NOTE: This is a complicated and evolving issue. Saginaw Bay Underwriters can assist you with a comprehensive Vaccine Mandate Compliance Check. Please see “Making the Complex Simple” below for more information.

On Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved a legal stay on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) which originally came into effect on November 5, 2021. This ETS requires most U.S. companies with 100 or more employees to mandate their workforce receive the COVID-19 vaccine or test them weekly.

OSHA also updated its ETS compliance deadlines at this time, saying:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 [2022] and will not issue citations for noncompliance with the standard’s testing requirements before February 9 [2022], so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

With the January 10 and February 9 deadlines in effect, along with the requirement that employers already be making “good faith efforts” towards compliance, now is the time for employers with 100 or more employees to understand and address the ETS. Moreover, given the possibility that similar requirements may eventually apply to businesses with fewer employees, it is a good time for all employers to consider this topic.

Here are some answers to frequently asked questions about OSHA’s ETS:

What’s an ETS & What Does This ETS Require?

If OSHA believes a “grave danger” to worker safety exists, the OSH Act permits an ETS that can be enforced immediately, without the usual notice-and-comment period that federal regulations typically follow.

This ETS requires private employers with 100 or more employees to either mandate covered employees be fully vaccinated against COVID-19 or require unvaccinated covered employees to test at least weekly for COVID-19 and wear a face covering.

Employers must also:

• Enforce written policies on vaccines, testing and face coverings
• Distribute certain information on vaccines and the requirements of the ETS to employees
• Provide paid time off to employees to get vaccinated and paid sick leave to employees who experience vaccine side effects
• Manage employee vaccination status records
• Comply with OSHA notice requirements regarding employee COVID-19 cases, hospitalizations or fatalities

What Happens if We Don’t Comply With the ETS?

Noncompliance could result in OSHA citations and penalties of up to $13,653 per violation.

Willful or egregious failures to comply could result in additional citations or penalties as determined by OSHA or MiOSHA. Keep in mind that these penalties could accrue for each facility, facility area or each employee within a facility. Employers also face potential exposures from whistleblowers and for retaliation, negligence and other possible employee claims.

How Long Will the ETS Be in Effect?

The ETS can only remain in place for six months. Once this period has passed, OSHA may replace the ETS with a similar permanent standard, but that would have to undergo formal rulemaking involving the typical notice-and-comment period.

Could Our Current Policies Already Be Compliant With the ETS?

Possibly. If your company already has policies mandating vaccines and/or regular testing and mask wearing, you may already be in compliance with the ETS. Ensure that you’re meeting all aspects of the requirements, including:

• Enforce written policies on vaccines, testing and face coverings
• Distribute certain information on vaccines and the requirements of the ETS to employees
• Provide paid time off to employees to get vaccinated and paid sick leave to employees who experience vaccine side effects
• Manage employee vaccination status records
• Comply with OSHA notice requirements regarding employee COVID-19 cases, hospitalizations or fatalities

What Should We Be Doing RIGHT NOW?

We recommend immediately following these five steps:

1. Determine whether the ETS applies to you. If you’re normally covered by OSHA, have 100 or more employees (nationwide) and are not exempt for some reason (e.g. the Healthcare COVID-19 ETS or Federal Contractor mandate), then it applies.
2. If the ETS applies to you and you aren’t already doing so, begin gathering employee vaccination statuses for the required vaccination roster. Doing this will also help you determine whether mandating vaccines or regular testing under the ETS makes the most sense for your business.
3. Begin developing the required policies regarding vaccines and/or testing and masking. Be prepared to implement them by January 10 at the latest and be able to demonstrate “good faith efforts” to put them into place.
4. Begin preparing the required training and informational programs for your employees. Once again, these items are not required until January 10, but good faith efforts are required already.
5. If you opt for the testing option, you should be prepared for unvaccinated employees to demonstrate proof of a negative COVID-19 test as of February 9.

Making the Complex Simple

The OSHA ETS is a complicated and evolving issue. It currently only applies to businesses with 100 or more employees, but eventually may apply to those with fewer. Noncompliance with the OSHA ETS can result in substantial financial and other ramifications.

Saginaw Bay Underwriters can assist you with a comprehensive Vaccine Mandate Compliance Check.

If you’d like to begin a conversation about performing a compliance check with one of our business or employee benefits risk advisors, please contact us.

Saginaw Bay Underwriters has made every attempt to ensure this information has been obtained from reliable sources. Sources: Emerge Apps, Fisher Phillips, Warner Norcross + Judd. Current as of: December 21, 2021