What You Need to Know About the Vaccine Mandate and OSHA ETS

By Ashley Roberts

The following article was originally published by Printing Impressions. To read more of their content, subscribe to their newsletter, Today on PIWorld.

President Biden recently issued two Executive Orders mandating companies with more than 100 employees to verify COVID-19 vaccination status and to issue tests to those who aren't vaccinated. The orders also mandate federal contractors, of any size — including printing companies that do work for the Government Publishing Office (GPO) and/or other federal agencies — to follow these same rules.

In response to this news, PRINTING United Alliance held a webinar last week with industry experts Adriane Harrison, VP of HR Consulting, and Gary Jones, Director of Environmental, Health, and Safety, who discussed the federal contractors mandate and OSHA's impending Emergency Temporary Standard (ETS), as well as what companies need to do to prepare and implement the mandate.

Federal Contractor Requirements

Harrison kicked off the event by addressing the federal contractor requirements. She explained that the rules apply to any size company and, that for companies with existing contracts, the vaccination policy applies only to employees who are on a federal worksite. For future contracts, language will be built in.

“Be aware that new mandates will be built into contracts you have or ones you will have in the future by Oct. 15, 2021," she explained.

Harrison continued by explaining that the federal contractor mandate will apply to new contracts or contract-agreements for services, construction, or leasehold interest.

“If you’re a printing company," she said, "printing is considered 'services.'”

The mandate applies to any employees performing work within the U.S., but does not apply to "subcontracts solely for the provision of products" or for contracts with Native American tribes.

According to a Sept. 24 guidance, covered contractor employees who aren't exempted must be fully vaccinated by Dec. 8, 2021. Harrison explained the guidance also stated that CDC masking and physical distancing guidelines must be followed.

Private Employer Considerations

When it comes to the Executive Order for private employees, however, the difference from the federal contractors mandate is that "it is fairly well-defined," Jones explained. "Private is a little more speculative."

The ETS, he said, will apply to employers with more than 100 employees, and can remain in effect for up to six months. After the six-month mark, a new standard must be issued.

Jones continued by explaining OSHA rarely uses ETS and that this type of standard is issued without public comment, unlike other OSHA regulations. Timing, however, is only speculative at this point. "OSHA has been absolutely silent" on timing, he noted.

Consensus is that the ETS is expected in early November. There needs to be enough time for people to get vaccinated before the vaccination mandate is enforceable, Jones said. He continued with some key things for employers to note about the mandate:

State OSHA Programs: 28 states have their own OSHA program. When OSHA releases the standard, the states must issue regulations within 30 days that are at least as effective as the Executive Orders.
Expectations: Employees are going to have to either be vaccinated or tested weekly.

Addressing Common Questions

Although the Executive Orders will be mandatory, there are exemptions to being vaccinated. Harrison explained the exceptions will be for "sincerely held religious beliefs" or for a "medical exemption from a doctor."

The question, she posed, is if employers will be responsible to verify the exemptions. Two additional things to think about with exemptions is that reasonable accommodation will need to be taken with exempted employees. Harrison explained this means that if the employee is in a position that can work from home or be relocated if they're frequently exposed to others, then the accommodation should be attempted. However, Undue Hardship will apply here, which means that if the accommodation creates hardship for the company, then the employer does not need to continue to employ the individual.

Headcount and Testing Rules Remain Hazy

Although the issue of determining headcount will not be clear until the OSHA standard is released, Jones explained that the common consensus is that it will be company-wide, regardless of how many locations a particular company operates.

But what happens if your printing establishment is part of a larger franchise? In this scenario, the headcount question is a little more fuzzy. Will OSHA use the headcount for the brand as a whole or for individually-owned franchises?

The question of how testing will be handled is also unclear. Some questions Jones posed are:

How will testing will be handled?
How will employers verify vaccination status?
What type of testing is required?
Who will pay for the testing: employers or employees?

On this last question, Jones made a salient point. No matter the result, “the cost of testing will be an incentive for vaccination.” If employees or employers have to pay for tests every week, it will incentivize them to get people vaccinated.

Liability Implications

Test administration is likely to happen at a trusted facility or on-site due to the possibility for "cheating," Harrison pointed out. However, who will administer the test remains a question. Will employees need to be trained to self-administer or will the management need to be trained to monitor or administer the tests?

Another question arises from a situation in which employees are administered tests on-site: HIPAA violations. In the case that an employee tests positive and is sent home, it is a HIPAA violation if other employees are witnesses to this circumstance or if the results aren't kept confidential?

Accuracy of tests is also an issue — if results are found to be inaccurate after the fact and employees are exposed — as well as the potential for injuries from an improperly administered test. Hopefully, though, these issues will be addressed in the ETS, Harrison said.

Retaining Records and Noncompliance

A consideration that Jones pointed out was that the OSHA standard could trigger a requirement for employers to retain records confidentially for the duration of the person's employment, plus an additional 30 years.

Noncompliance with the mandate could result in a penalty close to $14,000 per instance, Jones said. The penalty is likely to be commensurate with the size of the company. But the question remains how OSHA would be able to monitor compliance.

Finally, Harrison noted that employers will be required to provide PTO for employees to get vaccinated and to recover from possible side effects of the vaccine.

Although there are still many questions, the ETS will hopefully address the more pressing issues. Overall, Harrison and Jones agreed that the goal of the Executive Orders is to get as many people vaccinated as possible. PRINTING United Alliance will continue to monitor the situation.

To watch the full webinar on-demand and hear a more in-depth explanation of the Executive Orders and what they mean for your printing company, register now.