What does the vaccine mandate mean for you?

Nov 10, 2021

Editor's Note: This story was updated on January 6, 2022 to reflect the most recent information available.

On November 4, 2021, the Department of Labor and the Occupational Safety and Health Administration (OSHA) announced its Emergency Temporary Standard (ETS), which mandates companies with 100 or more employees to require them to be fully vaccinated against COVID-19 or submit to weekly testing. Independent retailers across the country are reading the fine print to determine if the ETS applies to them with part-time employees, across multiple locations, and more unique considerations. With mandates at the local level in some counties despite the number of employees, every retailer should be aware of the details behind the federal mandate. Keep reading for resources and information to guide your policies. 

Need a quick summary? Read OSHA's FAQs here.

With the Supreme Court scheduled to hear oral arguments in the legal challenge to this employer mandate on Friday, January 7, 2022, the National Grocers Association (NGA) released the following statement on January 5, 2022:

NGA members with 100 or more employees should begin preparations to comply with OSHA’s Emergency Temporary Standard (ETS) according to the current enforcement timeline in the scenario that the high court allows the mandate to move forward and OSHA does not announce any further delays."

The enforcement timeline is as follows (see OSHA FAQs for full details for each requirement).

Requirement January 10, 2022 February 9, 2022

Establish policy on vaccination (paragraph (d))

X

 

Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status (paragraph (e))

X

 

Provide support for employee vaccination (paragraph (f))

X

 

Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis (paragraph (h))

X

 

Remove any employee who received positive COVID-19 test or COVID-19 diagnosis (paragraph (h))

X

 

Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes (paragraph (i))

X

 

Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (paragraph (j))

X

 

Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours (paragraph (k))

X

 

Make certain records available (paragraph (l))

X

 

Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer) (paragraph (g))

 

X


FAQs

We spoke to NGA Director of Government Relations Robert Yeakel (cited below as RY) about these concerns and gathered information from OSHA.gov (cited below as OSHA) to address independent retailers' concerns.

Does my company need to have a vaccination policy?

RY: Companies with 100 or more employees are required by OSHA to have a policy that either enforces mandatory COVID-19 vaccination, or implements face coverings and weekly testing at the workplace for those employees who are not vaccinated. But  with state and local municipalities creating their own requirements, we strongly recommend every business, regardless of size, create their own COVID policy, taking into consideration evolving state and local policies regarding vaccinations, testing, and face coverings.

OSHA has provided two sample policies for employers:

What information must be provided to employees?

OSHA: The ETS requires employers to provide employees the following in a language and at a literacy level the employees understand:

  1. Information about the requirements of the ETS and workplace policies and procedures established to implement the ETS
  2. The CDC document “Key Things to Know About COVID-19 Vaccines”
  3. Information about protections against retaliation and discrimination
  4. Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Are part-time employees included in the 100-employee threshold?

OSHA: Yes. Part-time employees do count towards the total number of employees. For example, a company with 75 part-time employees and 25 full-time employees would be considered to have 100 employees and would be within the scope of this standard. 

Are the 100 employees counted for the entire business or per location?

OSHA: The count should be done at the employer level (firm- or corporate-wide), not the individual location level. Therefore, for a single corporate entity with multiple locations, all employees at all locations are counted. For example, if a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.

How will seasonal or temporary workers be addressed in the count? 

OSHA: Temporary and seasonal workers employed directly by the employer (i.e., not obtained from a temporary staffing agency) are counted in determining if the employer meets the 100-employee threshold, provided they are employed at any point while the ETS is in effect. 

The determination of whether an employer falls within the scope of this ETS based on number of employees should initially be made as of the effective date of the standard (November 5, 2021). If the employer has 100 or more employees on the effective date, this ETS applies for the duration of the standard. If the employer has fewer than 100 employees on the effective date of the standard, the standard would not apply to that employer as of the effective date.

However, if that same employer subsequently hires more workers and hits the 100-employee threshold for coverage, the employer would then be expected to come into compliance with the standard’s requirements. Once an employer has come within the scope of the ETS, the standard continues to apply for the remainder of the time the standard is in effect, regardless of fluctuations in the size of the employer’s workforce. For example, if an employer has 103 employees on the effective date of the standard, but then loses four within the next month, that employer would continue to be covered by the ETS.

What do employers do with vaccination information?

RY: Employers are required to determine the vaccination status of their employees, obtain acceptable proof of vaccination, maintain records of each employee's vaccination status, and maintain a roster of each employee's vaccination status. Since this is health information, there are certain confidentiality and privacy requirements that must be taken into account. NOTE: Employers are usually not blocked by HIPAA in seeking information about an employee's vaccine status. 

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