What retailers need to know about the OSHA vaccine mandate

The Occupational Health and Safety Administration has finally issued its Emergency Temporary Standard implementing President Biden’s September order that companies with 100 or more workers mandate that their employees are either vaccinated against COVID-19 or tested weekly.

Under the standard, workers must be fully vaccinated or undergo testing beginning January 4, but there are earlier deadlines as soon as early December that must be met to ensure compliance by then.

As soon as the ETS was issued, NRF asked the White House to delay full implementation until March given the holiday season and supply chain challenges faced by retailers. And after the 5^th U.S. Circuit Court of Appeals temporarily blocked the ETS, we repeated that request in a second letter to both the White House and the Labor Department. But after the administration gave no indication that it would postpone implementation, we had no choice but to join with other business organizations and file our own lawsuit with the same court asking for a similar temporary stay blocking the order.

While the ETS is already on hold and multiple lawsuits have been filed arguing various aspects of the issue, the case brought by NRF and other business groups details the impact on the retail industry and says the ETS comes at “the worst possible time of the year” for our industry.

The ETS comes as retailers across the country have already taken extraordinary measures to keep their employees, customers and communities safe during the pandemic. Many have encouraged vaccination, offered employees incentives for vaccination or voluntarily adopted vaccination mandates.

Despite these efforts, the administration has decided to declare an “emergency” 19 months into the pandemic and during the most crucial shopping season of the year. As such, OSHA’s new rules will cause additional disruption to the economy, exacerbate the existing labor shortage and saddle retailers with burdensome and time-consuming requirements.

Given that the stay already ordered by the 5^th Circuit is only temporary and that the outcome of other legal actions is uncertain, retailers need to begin immediate preparations to comply with the ETS. Here are key things retailers need to know:

By December 5:

•    Employers must inform workers of the ETS requirements and ETS-related company policies or procedures.
•    Employers must impose a mask mandate for unvaccinated employees.
•    Employers must assess their workforce to determine who is and isn’t vaccinated. Employers are required to view employees’ vaccination cards to confirm their status.
•    Employers must determine which unvaccinated workers are willing to get vaccinated and which refuse.

By December 7/December 14:

•    To receive both shots and be fully vaccinated by January 4, workers who are willing to be vaccinated must receive their first Moderna shot by December 7, or their first Pfizer shot by December 14. Those choosing the single-shot Johnson & Johnson vaccine have until January 3.
•    Employers must provide up to four hours of paid time off for workers to get vaccinated, including travel time, and cannot require workers to use vacation time.
•    Employers must provide “reasonable” paid time off to recover from any side effects but can require workers to use accrued time off.

Beginning January 4:

•    Employers must have a vaccine/testing mandate in place.
•    Unvaccinated employees can be admitted to the workplace only if they produce a negative COVID-19 test and wear a mask.
•    Unvaccinated employees must be tested weekly, and employers must have a testing program in place. Employers have the option of either paying for the tests or requiring employees to pay. Simple home-type rapid tests can be used, but the test must be administered in the presence of the employer, a health care provider or telehealth test proctor.
•    Employees who test positive for COVID-19 or who are diagnosed with the virus must be removed from the workplace.
•    Employees who work alone without coworkers or customers, from home or exclusively outdoors are exempt from the vaccine mandate and testing.

The above is a simplified summary of the ETS requirements and was updated on Nov. 10. The most current information, including the full ETS text, can be found on OSHA’s ETS website, and retailers should have their legal counsel carefully review the requirements.