Vaccine Mandate for Companies With 100+ Employees

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Months after announcing a forthcoming standard, on November 4, 2021, the Department of Labor's Occupational and Safety Health Administration implemented an emergency temporary standard directing private businesses with more than 100 employees to mandate vaccinations for employees, or have workers demonstrate a negative virus test on a weekly basis. The regulation will affect upwards of 84 million employees, or more than 2/3 of the country's workforce. In Illinois, because the state has its own safety agency, the mandate will also apply to local and state government workers.

Under the standard, a simple company-wide headcount at the employer level, i.e., a single corporate entity, of part-time and full-time employees (including at all locations) will be used to determine if employers have at least 100 employees. Independent contractors and temporary workers are not counted toward the threshold. Additional guidance as to counting employees, particularly involving businesses with related entities, is expected.

By December 5, employers will be required to provide paid time off for workers to get vaccinated and recover from any side effects from being vaccinated, as well as mandate masks in the workplace for unvaccinated workers. Employers then have until January 4, 2022, to implement the vaccination policy. Acceptable proof of vaccination includes, among other things, a record of immunization from a health care provider or pharmacy, a COVID-19 vaccination card, or a copy of medical records reflecting the vaccination. Employers will be required to gather vaccination status and testing information and have these records available. However, they are not required to submit proof of compliance.

Employers must ensure that employees who are not fully vaccinate wear appropriate face covering when indoors and when occupying a vehicle with another person for work purposes, except: (i) when an employee is alone in a room with floor to ceiling walls and a closed door or (ii) for a limited time while the employee is eating or drinking at the workplace; or (iii) for identification purposes in compliance with safety and security requirements.

Health care workers have no option for opting out of the vaccine mandate. Conversely, the standard does not apply to employees of covered employers who do not report to a workplace involving contact with coworkers or customers, those working from home, or those working exclusively outdoors. In addition, nothing prevents employers from agreeing with workers or bargaining representatives to additional measures, beyond the standard imposed, to address COVID-19 prevention.

Employers are not required to cover the cost for weekly testing for employees who are not fully vaccinated. However, the issued standard cautioned that employers may be required to cover these costs under other laws or collective bargaining agreements. The type of weekly testing must be approved or authorized by the FDA and may not be both self-administered and self-read unless observed by the employer or authorized health proctor.

Following January 4, 2022, an unvaccinated employee who cannot produce a negative COVID-19 test, or any employee who tests positive, must be removed from the workplace. Employers failing to meet these requirements could face substantial fines for each employee not in compliance, and/or for willful violations.

Employers must provide to each employee: (1) information regarding the standard requirements and the employer's implemented policy; (2) the document "Key Things To Know About COVID-19 Vaccines," available on the CDC website; and (3) prohibitions from discharging or discriminating against employees who report a work related injury or illness.

The complete Emergency Temporary Standard can be viewed here. For compliance questions, please contact Burke Warren partners Rachel E. Bossard at 312-840-7029 or Alex D. Marks at 312-840-7022.

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