Vaccine Mandates and OSHA’s ETS: New 2022 Updates and Deadlines Employers Need to Know

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MP: Good afternoon, and thank you for joining us for an MP webinar covering vaccine mandates and osha’s ETS new 22 2022 updates and deadlines employers need to know.

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MP: i’m amy women head of marketing here at MP and for those of you joining us on a webinar for the first time MP, is a full service human capital management company.

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MP: We offer a complete suite of products and services to support organizations, through the entire employee lifecycle.

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MP: Including recruiting HR payroll benefits administration time and attendance and compliance assistance.

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MP: We support our clients with cutting edge technical solutions, as well as proactive reliable service and deep HR and payroll expertise.

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MP: And NP we are wired for HR and help our clients succeed by aligning their people strategy with their business goals.

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MP: I am so excited to introduce your presenters for today, Paul Cornelis and sherry Heller.

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MP: Paul is the VP of HR services here at MP, he Sherman phr certified and has over a decade of experience in HR consulting space, working with businesses of all sizes and industries.

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MP: Paul and his team have certified HR professionals assist clients with compliance training and full circle HR guidance and support.

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MP: sherry Heller is a Sherman phr certified HR partner here at MP, she has over 20 years of experience in employee relations, training and development strategic planning and policy development.

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MP: sherry earned a master of education and instructional design from umass she spent many years in retail management prior to getting into HR which provides her with a unique business perspective on human resources.

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MP: Just a few housekeeping issues before we get started here today, if you would like to submit a question during the program please use the Q amp a feature at the bottom of the screen.

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MP: And we will be sending out a recording of the webinar along with all the slides later this afternoon, and with that i’m going to hand the MIC off to sherry.

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Sheri Heller: Thank you amy and good afternoon everybody, thank you for joining us this afternoon.

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Sheri Heller: Quick legal disclaimer training is intended for educational and informational purposes only a while we do hope you learned a lot today, we are not attorneys and we don’t want anything construed as legal advice.

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Sheri Heller: So that all said today for this presentation we’re going to talk about this OSHA ETS emergency temporary standard.

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Sheri Heller: And we’ll talk about who covered employers are some of the requirements under the ETS.

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Sheri Heller: will talk about the mandatory vaccine policies determining vaccination status weekly covert testing, and then we have some resources at the end of the presentation that you’ll be able to access.

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Sheri Heller: And I also will also going to try and leave a sufficient amount of time at the end for a live Q amp a so as amy mentioned, if you can use the Q amp a feature.

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Sheri Heller: To send your questions in throughout the presentation we will get to them towards the end alright, so this whole saga began back on November 4 when the Department of labor’s OSHA.

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Sheri Heller: OSHA administration released its coven 19 vaccination, emergency temporary standard we fondly refer to that as the ETS.

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Sheri Heller: which establish the new mandatory vaccination requirements for private employers with 100 or more employees.

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Sheri Heller: That are November six the fifth circuit Court of Appeals issue to stay freezing the ETS then on December 17 the sixth circuit Court of Appeals and the two to one decision dissolve the stay previously placed.

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Sheri Heller: By the fifth circuit appeals court, and now we are anxiously awaiting the Supreme Court, who is going to hear expedited oral arguments tomorrow January 7 so as it stands right now, this OSHA ETS is in effect.

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Sheri Heller: Absolutely could change tomorrow but we’re going to go with that premise and with that let’s talk about when it takes effect so when they initially when this was first issued back in November, the ETS deadline for mask mandates and other provisions was December 5 and the.

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Sheri Heller: Vaccination had to start by January 4 but, once the state was dissolved on December 17 OSHA issued a statement that they were going to exercise enforcement discussion with respect to the compliance deeds.

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Sheri Heller: and to give them player sufficient time to come into compliance OSHA will not use your citations for non compliance with any requirements of the ETS before January 10.

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Sheri Heller: And they will not issue citations for non compliance with the standards for testing before February 9.

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Sheri Heller: In this is so long as the employer is exercising reasonable good faith efforts to come into compliance and that’s really a very important standard there only because.

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Sheri Heller: As you all know, especially as we’re getting closer to having to get into the testing the.

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Sheri Heller: The availability, or lack of availability of the rapid test right now, and the time it takes to actually go and get PCR tests are really a challenge So hopefully by that February 9 date those issues will be alleviated.

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Sheri Heller: All right, so i’m the ocean put together a little checklist here of what needs to be done by when so virtually everything with the ETS standard i’m sorry the ETS has to be in place by January 10 and then, with the exception of the weekly testing or vaccination, which is February night.

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Sheri Heller: Okay, so who’s covered under this so all private employers with 100 or more employees company wide.

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Sheri Heller: So for employers who have fluctuating employee numbers on the determination of whether the employer falls within the scope of the ETS should initially be made as the effective date.

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Sheri Heller: Excuse me, if the employer has 100 or more employees on that, on the effective date and the ETS applies for the duration of the standard and that’s even if your numbers drop below 100.

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Sheri Heller: If the employer has fewer than 100 employees on the effective date but subsequently hires more workers and hit that hundred employee threshold.

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Sheri Heller: At that point, you be expected to come into compliance with the standard requirements and then, once an employer comes.

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Sheri Heller: comes within the scope of the ETS the standard continues to apply for the remainder again regardless of fluctuation in the size of your workforce.

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Sheri Heller: up so who is it not covered by this ETS any workplaces that are covered under the safer federal workforce Task Force.

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Sheri Heller: coven 19 workplace safety guidance for federal contractors and subcontractors, which was issued by OSHA back in September.

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Sheri Heller: Any settings where an employee provides health care services or healthcare support services that are subject to the requirements of the healthcare ETS that OSHA issue back in June.

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Sheri Heller: workplaces have employees who have fewer than 100 employees in total, and then public employers in states with out state plans, so those are the only.

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Sheri Heller: employers who are exempt from this and when we’re talking about 100 employees, we are talking about 100 employees company wide, not by location, so if you have multiple locations or multiple offices we’re looking at the total amount of employees.

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Sheri Heller: All right, so who’s counting how are we going to kind of our employees on all employees, including part time employees and those working from home or counted towards the threshold.

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Sheri Heller: As well as any seasonal or temporary workers that are paid directly by the business so for in for a typical multi employer work site, such as a construction site each company represented.

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Sheri Heller: The coast employer, the general contractor and the sub subcontractor would only need to count its own employees, so if you are a multi employer work site, you can do that.

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Sheri Heller: Independent contractors in season or temporary workers that are paid through a staffing agency do not count towards that hundred employee threshold.

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Sheri Heller: Alright, so, as you know, with this ETS you as a nuclear can choose either the mandatory vaccinations or the weekly testing option so.

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Sheri Heller: For the vaccinations that are some exceptions, so if an employer is covered by the ETS that doesn’t mean that all of your employees have to follow the provisions.

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Sheri Heller: If the requirement doesn’t apply to employees who do not report to a workplace where other individuals are present.

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Sheri Heller: Employees who are working from home or employees who work exclusively outdoors so in order to qualify for as work performed exclusively outdoors.

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Sheri Heller: You have to meet the following criteria, so it has the employee must work outdoors on all days, so, for example, an employee who works indoors on Sundays and outdoors on others would not be exempt from the requirements.

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Sheri Heller: Of the employee, he must not routinely occupied vehicles with other employees as part of the work duties so, for example, they don’t drive to work sites together in a company vehicle.

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Sheri Heller: The employee works outdoors for the duration of every work day, except for what they refer to as de minimis use of indoor space, which would be running into use the bathroom or into the office quickly.

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Sheri Heller: As long as the time spent indoors is brief.

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Sheri Heller: And the employers, employees work must truly occur outdoors which does not include buildings under construction were substantial portions of the structure are in place.

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Sheri Heller: Such as walls and ceiling elements that would impede the natural flow of fresh air in the work site so that’s the the specifics on outdoor work.

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Sheri Heller: Excuse me, and then there are also medical and religious accommodations that you need be required to meet.

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Sheri Heller: So exceptions form from a mandatory vaccination policy would include accommodations made for those with medical contraindications medical necessity require a delay of vaccination or reasonable accommodations for workers with disabilities or sincerely held religious beliefs.

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Sheri Heller: So under the Ada the Americans with Disabilities Act employers have to evaluate requested determine whether a reasonable accommodation.

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Sheri Heller: would enable the employee to perform all essential functions of their job without putting a direct threat to the safety of themselves or others.

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Sheri Heller: So, according to the CDC the only people who would who would clearly qualify for an exemption from vaccination or those who have a severe allergic reaction after the first vaccine dose.

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Sheri Heller: Or have a known allergy to a component of the vaccine what that said states such as Alabama and iowa have recently signed laws, giving.

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Sheri Heller: Giving workers, the right to claim medical exemptions, simply by filling out a form so we’ll have to really wait and see whether the OSHA ETS will override those state specific requirements.

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Sheri Heller: Excuse me for religious accommodations you should confirm whether the employees accommodation request is indeed based on a sincerely held religious belief or practice how receiving the vaccine would violate that employees belief and then what accommodation, the employee is requesting.

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Sheri Heller: The procedures applicable to employees who are not fully vaccinated what would also apply to those who are unable to receive the vaccine, as a result of a medical or religious accommodation so anybody who is.

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Sheri Heller: is going to be exempt from this because of an accommodation with them have to follow the weekly testing testing and masking requirements of the ETS.

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Sheri Heller: Alright, so a big piece of this ETS is the written vaccination policy.

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Sheri Heller: The ETS requires employers to develop, implement and enforce a mandatory Kovac 19 vaccine policy, with the exception of employers that instead establish.

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Sheri Heller: The and enforce a policy that allows employees who are not fully vaccinated to elect weekly covert testing.

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Sheri Heller: So the written policy has to include the following on it has to include the requirements for the coven 19 vaccination applicable exclusions from the written policy as we just discussed medical contract indications medical necessity.

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Sheri Heller: Reasonable accommodations and such has to include information on determining employees vaccination status and how this information will be collected.

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Sheri Heller: Paid time and sick leave for vaccination purposes, which will cover in a few minutes a notification of positive coven 19 tests and the removal of coven 19 positive employees from the workplace and then any disciplinary action for employees who don’t comply with the policy.

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Sheri Heller: In addition to addressing the requirements.

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Sheri Heller: Of the standard the employer should also include all relevant information regarding the policies effective date who the policy applies to deadlines for submitting the vaccination information or getting vaccinated and any procedures for compliance and forsman.

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Sheri Heller: Excuse me, and then employers are permitted to implement a partial mandatory vaccination policy that applies to only a portion of your workforce.

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Sheri Heller: So, for example in a retail environment where you have a mixture of staff that work in a corporate headquarters, some are performing intimate and tell work from home and others are working in stores, who serve customers.

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Sheri Heller: In this type of situation, the employer could choose to require vaccination of only some subset of the employees, such as those working in stores into treat vaccination is optional, but others such as those who work from headquarters, who telework.

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Sheri Heller: All right, and then there’s a few other additional requirements of the ETS that, in addition to the written policy, you also need to provide your employees with information about the requirements of the ETS.

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Sheri Heller: protections against retaliation and discrimination in laws that that provide criminal penalties for knowingly supplying false statements or documentation links to.

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Sheri Heller: All of these documents that you need to provide and samples of the policies are at the end of the presentation so you’ll have those on the resource page and with that I am going to turn the presentation over to Paul the starters on proof of vaccination.

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Paul Carelis: Thank you, sherry welcome everybody has sherry said, this is a quickly changing topics so we’ll we’ll do our best to give you the latest and the greatest and.

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Paul Carelis: This is current as of January 620 22.

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Paul Carelis: In terms of proof of vaccination and what’s required, there is a specific list so in terms of what would be considered acceptable proof for you to have on file either the record of immunization from a health care provider or pharmacy the coven 19 vaccination record card.

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Paul Carelis: medical records documenting the vaccination immunization records from a public health state or tribal immunization information system.

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Paul Carelis: or some other form of acceptable official documentation, it is important to note that, while you can accept digital copy, so you know if someone has a.

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Paul Carelis: scan or a photograph of a document the etfs does consider that acceptable, however, as the employer, you are under the record keeping requirements you do need to keep a copy so just simply looking at at the picture of the card.

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Paul Carelis: And not actually mean retaining a copy of it would would fall out of compliance.

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Paul Carelis: One quick question before we move on from this slide is and that’s come up before is you know what happens if the employee says they they were vaccinated but they’ve lost that they’ve lost the proof.

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Paul Carelis: So you really should urge them to contact the either the source of where they received the vaccination or the public health department in their state.

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Paul Carelis: To obtain a new copy of that, especially as there are more vaccine mandates and other applications, not just employment, where they may need to show that proof, if you enter a scenario where the employee states that they cannot come up with the proof of vaccination.

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Paul Carelis: Rather recently added faqs in osha’s.

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Paul Carelis: answers in in in the ETS information does allow for an employee statement but it’s very specific in terms of what that statement needs to include.

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Paul Carelis: They need to be able to attest to their vaccinations status either fully or partially vaccinated a test that they’ve lost they’re unable to produce the proof required.

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Paul Carelis: And there’s also some very specific language that they need to include on the statement.

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Paul Carelis: Quote I declare or certify verify your state that this statement about my vaccination status is true and accurate, I understand that knowingly providing false information regarding my vaccination status on this for me subject me to criminal penalties.

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Paul Carelis: And then they then have to, to the best of their recollection include the type of vaccine that they received, to the best of their knowledge, the dates and the location or name of the professional that provided the vaccination so.

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Paul Carelis: In case you do run into that, as I know, some employers have that is the standard is very important for your record keeping and audit purposes that you do follow that directive and have that exact language in there on any of those statements if they should arise.

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Paul Carelis: So as an employer what what you want to start doing if you haven’t already is.

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Paul Carelis: kind of building out a vaccination roster based on on your workforce, so you want to indicate the folks who are fully vaccinated and under the ETS fully vaccinated means that.

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Paul Carelis: They are two weeks post, the second dose if it’s Pfizer and Madonna or two weeks post their Johnson and Johnson shot.

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Paul Carelis: To be considered fully vaccinated as with, as with all aspects of this this could change their there hasn’t been a requirement in terms of the boosters are.

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Paul Carelis: needing to have that to be considered fully vaccinated that time but but stay tuned in case that does change.

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Paul Carelis: You then want to include the section of partially vaccinated folks so that may be employees who have received one of two doses or are in that kind of two week waiting period following their final dose.

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Paul Carelis: You then want to list out the employees who are not fully vaccinated because of a medical original a religious accommodation.

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Paul Carelis: And then, finally, the group of employees, not fully vaccinated because either they have not provided acceptable proof of vaccination status refusing to get the vaccine, what have you.

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Paul Carelis: So one of the one of the more interesting aspects of of the ETS is is the expectation a requirement of of employers to rebates provide paid time off.

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Paul Carelis: In an effort to get their full their workforce fully vaccinated.

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Paul Carelis: So.

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Paul Carelis: Employers are expected to provide up to four hours of paid time off for employees to receive each of their primary vaccination doses so again, this is to achieve the current definition of fully vaccinated.

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Paul Carelis: They do also ask and require employers to provide reasonable time and paid sick leave to recover from potential side effects of.

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Paul Carelis: Of the vaccine.

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Paul Carelis: When it comes to the time for obtaining the vaccine.

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Paul Carelis: Employers are not allowed to require employees to use existing SEC or pto balances for that time to obtain the vaccine, however, they can allow.

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Paul Carelis: Employees to use existing SEC or pto balances in the time to recover from potential side effects they did, however, state that.

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Paul Carelis: They do not want employees going into the negative when it comes to that time, so you should provide the time and not allow employees to have to borrow or go into a negative balance when when recovering from side effects.

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Paul Carelis: Okay, I think we can go to the next slide here.

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Paul Carelis: So Should you decide to to allow for it and not strictly have 100% vaccine mandate, other than medical or religious accommodations.

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Paul Carelis: You do need to start developing a testing protocol so anyone who is unvaccinated would need to have a weekly test for any any week that they’re going to be working at least one day.

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Paul Carelis: A question had come up recently with me where hey this employee only comes into the office once a month for a meeting or whatever it may be, do they have this object a weekly testing no, but they do have to produce a test for that week in which they are going to be working.

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Paul Carelis: This as sherry kind of mentioned before, this does not apply to employees who don’t report to a workplace where other individuals are present or while working from home so.

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Paul Carelis: If they’re a one man show either at home or somewhere else, where there aren’t other people around, then they do not have to test if they are not vaccinated.

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Paul Carelis: As the employer you do need to maintain a record of each test result, while the ETS remains in effect is this isn’t just a kind of show and go type thing you do need to keep an accurate detailed record of the testing results.

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Paul Carelis: So, in terms of what qualifies as acceptable testing first the test needs to be cleared approved or authorized by the FDA to detect current infection.

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Paul Carelis: And certainly laboratory tests PCR all of that would qualify and needs to be administered in accordance with authorized instructions so.

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Paul Carelis: Whichever tested is the, we need to be able to ensure that it’s been that the data and the sample has been collected accurately and in a safe and effective manner.

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Paul Carelis: And number three, and this is really one of the more common questions we get or that employees are asking what about home test is obviously the most simple and oftentimes the quickest way to get a result.

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Paul Carelis: home test themselves and those kits are not are acceptable in terms of the technology and the accuracy, but.

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Paul Carelis: They cannot be both self administered and self read unless observed by the employer and authorized Tele health proctor so what that means is that.

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Paul Carelis: You can have an employee complete their their rapid test at home and then bring in the the result in show that.

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Paul Carelis: If they’re doing one of those home rapid tests, they really need to bring it in, and it has to be observed by by you, as the employer that.

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Paul Carelis: you’ve seen them do the swab put it in and get a result simply bringing a home test that’s already been conducted does not qualify under the testing requirement.

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Paul Carelis: Alright, so who pays for Corbett 19 testing, this is a question that’s come up so by the OSHA etfs this temporary standard the ETS does not require employees to pay for testing, so this can be an expense.

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Paul Carelis: handed over to employees, but there may be required by other laws, regulations or CPA so interestingly, one of the more aggressive states so far on this front.

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Paul Carelis: has actually been new Hampshire so the new Hampshire department of Labor just recently weighed in to say that.

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Paul Carelis: If there is required testing that as of right now, the new Hampshire department of Labor stands is that employers are required to pay pay for the expensive testing.

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Paul Carelis: we’ll see we’ll see where that goes and certainly a lot to be decided and a lot to be cleared up here, but as of right now, you do want to make sure that whatever state you’re operating in.

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Paul Carelis: That you’re not just find this federal standard, especially when it comes to testing costs that you are following any State laws, regulations or decisions by a by a governmental agency in terms of.

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Paul Carelis: Bear that expense.

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Paul Carelis: When it comes to making accommodations for for folks who have a valid medical exemption.

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Paul Carelis: depending on the circumstances there, there may be an expectation a requirement for an employer to pay for testing in those situations to not have the employee bear that additional expense, as part of the reasonable accommodation.

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Paul Carelis: And you would be required for the time spend waiting for and receiving a test under the fair Labor standards act that is considered compensable time as it’s a condition of employment.

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Paul Carelis: So what happens when when there is a positive kuvan 19 tests, and this is unfortunately having a lot more often than it had been over the last couple months.

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Paul Carelis: Obviously, a huge spike and surge in the number, so this is is occurring more than most employers would like to see so employees are required to provide notice to their employer when they do test positive.

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Paul Carelis: That employee if they are working so let’s say they get a phone call from the lab or get a text message, or the results, otherwise come in, after after they’ve been working whether they’re vaccinated or not, they need to be removed from the workplace.

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Paul Carelis: immediately, and then they have to remain removed from the workplace until they meet one of these three criteria either receiving a negative result on a test.

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Paul Carelis: Meeting the CDC is returned to work criteria so again right now that’s after five days, if the symptoms of subsided or improved along with wearing a mask following that return.

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Paul Carelis: CDC is reviewing some of some of those recommendations, right now, so that’s certainly subject to change.

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Paul Carelis: or 30 if they receive a recommendation and return to work from a licensed health care provider, so if they get clearance from from a doctor that they’re safe to return to work, then that would be acceptable as well.

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Paul Carelis: One question in terms of this that’s come up so when we’re talking about folks who are unvaccinated and test positive.

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Paul Carelis: As many people know or suspect.

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Paul Carelis: They they could be recovered their their symptoms could have subsided, but in terms of that weekly testing requirement that they’re subject to if they’re not vaccinated.

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Paul Carelis: They could very well still test positive for days or even several weeks afterwards so So what do we do in that situation so based on the latest guidance from OSHA and the etfs.

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Paul Carelis: They say that testing positive and then meeting one of these requirements to safely return to work.

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Paul Carelis: pretty much grants and 90 days day from from the testing requirement for those folks so they shouldn’t be be tested for another 90 days once 90 days passes.

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Paul Carelis: Provided that this ETS is still, in effect, they would then have to resume that that weekly testing requirement and be able to show a negative test, but essentially a positive test and removal from the workplace, then then starts at 90 day window.

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Paul Carelis: Without testing, because the reliability of that positive may not be accurate.

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Paul Carelis: So in addition to that testing requirement for folks who are not fully vaccinated.

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Paul Carelis: There is also a requirement that they have a appropriate fees covering while there, while they’re working.

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Paul Carelis: So, in terms of defining what is considered an appropriate an acceptable face covering it nice to meet all of these criteria that you see on the screen now, and he said completely cover their nose and mouth.

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Paul Carelis: To a more layers layers are beautiful fabric that’s tightly woven secure with ties ear loops or elastic bands fitting snugly over the nose mouth and chin.

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Paul Carelis: or solid piece of material without slits exhalation valves visible holes punctures or other openings so.

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Paul Carelis: Employees will sometimes be defiant or get creative, but you know something like say a mesh mask would not not be acceptable PR the PR the ETS.

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Paul Carelis: If you have employees who are in the process of becoming vaccinated but but not yet fully vaccinated.

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Paul Carelis: You want to make sure that they’re they’re following this feast covering requirement as well.

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Paul Carelis: So, in line with with some of the other OSHA reporting requirements when there are other workplace accidents there are rules regarding kuvan 19.

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Paul Carelis: And incidents that happened in terms of your obligation as an employer to report those the OSHA.

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Paul Carelis: If there’s a work related coven 19 fatality much like other work related fatalities those need to be reported to OSHA within eight hours.

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Paul Carelis: If there’s a work related covert 19 Inpatient hospitalization those should be reported to OSHA within 24 hours.

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Paul Carelis: So, probably what for a lot of employers who.

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Paul Carelis: are upset with this etfs and concerned with compliance and.

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Paul Carelis: And, following all these rules and getting everything in place as sherry said there’s there’s a lot of emphasis here on good faith effort so.

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Paul Carelis: You really what you want to do first and foremost, is really make a good faith, effort and I would I would highly recommend as a best practice just kind of documenting your your efforts in that so.

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Paul Carelis: In terms of not just having the policy but on a case by case basis, as your counseling employees are working to get them.

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Paul Carelis: vaccinated whatever it may be, or objections you run into just kind of document the process, just so that should you be questioned or should you be accused of anything and are accused by OSHA not having a.

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Paul Carelis: A workplace that safe, or at least not in compliance with this etfs that you have a really nice paper trail of all the efforts that you made, and all the.

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Paul Carelis: Measures that you’ve taken to to be in compliance with this, so I think.

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Paul Carelis: Even before pandemic times whenever safety violations came up because that was always oceans bread and butter before they kind of got into the the realm of of this ETS and pandemic and safety when it comes to viruses and contagions.

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Paul Carelis: they’ve always as an agency respected a good faith effort so.

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Paul Carelis: they’ve always had a heavier hand with businesses that are.

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Paul Carelis: You know willfully.

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Paul Carelis: breaking the rules and creating a an unsafe workplace and kind of knowingly do it having malicious intent whatever, but if a company was.

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Paul Carelis: Seemingly making a good effort trying to have a safe workplace and just wasn’t aware of a certain standard or didn’t realize that that something was was out of compliance, then.

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Paul Carelis: A lot of times, OSHA would work with those businesses to to get them in compliance really using using it as a training opportunity greatly reducing fines and penalties, but.

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Paul Carelis: Along the same lines.

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Paul Carelis: They have done their best to let everyone know what the expectations are with this, and they are expecting compliance, so you want to do everything you can to get into compliance, if you should be cited.

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Paul Carelis: In the potential penalties are for each violation of the ETS fines and penalties could be up to $13,653 per violation and those could multiply.

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Paul Carelis: Obviously these haven’t started yet so don’t know how particular there’ll be or if they’ll count each employee as a violation but.

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Paul Carelis: Those numbers nonetheless can add up very, very quickly.

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Paul Carelis: They do reserve the right to have that amount for each facility each area within a facility or even each employee so again we’ll see how it operates in practice, but they do reserve the right to.

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Paul Carelis: multiply that depending on those criteria.

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Paul Carelis: So as an employer what what should you do now, what are your next steps.

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Paul Carelis: First, you want to get that roster going start collecting your vaccine status information from your workforce get that roster going.

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Paul Carelis: decide if you’re going to go with strictly the mandatory vaccine policy or if you’re going to allow that weekly testing option, with the with the masking requirement.

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Paul Carelis: do create or or otherwise source a solid vaccine and testing policy that fits for your business and that you’re going to be able to hold up and hold people accountable to.

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Paul Carelis: you’re going to need to determine what the Logistics are going to be for weekly testing so again it’s not going to be as simple as having everyone bringing a home test and having that done at home and showing you the results.

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Paul Carelis: there’s going to be some some system required as sherry said.

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Paul Carelis: That good faith effort does rely upon adequate resources for it for testing both appointments available to employees who wish to do laboratory testing and availability of home kits for.

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Paul Carelis: Employees who want to go that route, right now, OSHA is saying that they feel that there is appropriate availability.

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Paul Carelis: i’m sure some of us out there who have tried to obtain testing would would take issue with that, but as of right now, or as of the latest update to the frequently asked questions on the ETS.

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Paul Carelis: OSHA does take the stand currently that there is adequate resources available for for weekly testing again we’ll see if their tune changes, once this is actually an effect.

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Paul Carelis: And you do want to make sure, much like any regulation, whether it be wage in our compliance or sexual harassment laws.

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Paul Carelis: Your managers are really your managers and supervisors are really key in this in compliance with this, so you want to make sure that they’re they’re an asset to your business and helping you.

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Paul Carelis: be in compliance and not being instead of liability so make sure that your managers and supervisors are properly trained on what the expectations are for testing vaccination status and maybe more importantly, on the front lines masking and fees coverings.

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Sheri Heller: Alright, so before we get into our Q amp a just want to bring to your attention the resources pages.

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Sheri Heller: As amy mentioned at the beginning, we will be sending out a copy of the slide deck as well as a link to the recorded session.

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Sheri Heller: So you can review this at your leisure and then with these resources, so in this page we’ve put together the first link is.

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Sheri Heller: For the main etfs page on OSHA website it’s got every everything you could possibly need on this, there are also sample policies for mandatory vaccination or the vaccination or testing standard.

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Sheri Heller: There is a really good emergency temporary standard faq that also put together, it has a lot of great information, so I think that’ll be very helpful.

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Sheri Heller: there’s the fact sheet, the workers rights in the penalties sheets are three that you need to give to employees, in addition to your written policy, so those are available to you here as well, so Paul we got lots of questions.

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Sheri Heller: Oh yeah so.

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Sheri Heller: You want to pick on and start.

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Paul Carelis: Sure let’s see here.

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Paul Carelis: let’s see what is the effective date to determine the hundred employees, so I believe that and correct me if you disagree sherry, but I believe that would be January 10 correct kind of the launch of this pending and yeah Supreme Court intervention yeah.

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Sheri Heller: Exactly and there’s been a couple of a couple questions about that in counting those hundred employees.

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Sheri Heller: One person asked about you know if I currently have 9095 and then during the year we go up to 110 So if you currently have 95 now.

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Sheri Heller: You don’t have to comply with this, but as soon as you hit that hundred employee threshold.

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Sheri Heller: you’re expected to bring yourself into compliance and then you have to stay in compliance with the ETS for the remainder of it staying in place regardless if you fluctuate below 100 so once you hit that magic hundred number.

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Sheri Heller: And then the other big questions that were coming in words as far as remote employees so again.

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Sheri Heller: When you’re counting your total workforce you do count your remote employees, but in determining your hundred employee threshold, but those employees, if they are remaining remote don’t have to follow the testing or the or the.

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Sheri Heller: Vaccination or what are masking policies unless they’re coming into the office.

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Paul Carelis: yeah, so I think, as a rule of thumb, it is a good idea to to have them on your roster and collect their vaccinations status if if there if you foresee that there could potentially be the possibility that they would.

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Paul Carelis: come into the office or do work on site in any capacity, because if they are not fully vaccinated then for that that week or day that they are coming in, they wouldn’t need to be able to provide a negative test.

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Sheri Heller: here’s a good one, and this, this is coming up more often than I thought it was, but for companies with multiple locations, each of which that has a separate.

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Sheri Heller: llc or FBI and would they still be counted in the aggregate or separately so that’s a darn good question, so the ETS doesn’t exactly.

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Sheri Heller: They just say company wide but because OSHA falls under the Department of Labor we’re sort of leaning towards what the Department of Labor would look at so from an irs standpoint, the separate fei ends are treated as separate companies, but as far as the Department of Labor is concerned.

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Sheri Heller: It is fold ownership and or management, then they would that department of Labor would look at it as a whole, so let me give you a good example, I have a restaurant group I work with that.

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Sheri Heller: The restaurants have different fei ends, but they have common management, the Department of Labor looks at that entity as one whole all three locations.

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Sheri Heller: Not the separate fei ends now if your separate fei ends are also separate individual businesses with separate management, you know, maybe one of them is.

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Sheri Heller: Is a retail store and another one is your manufacturing and those you might look at separately, but if they are common management common ownership, I would recommend looking at it in total.

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Paul Carelis: yeah I think the to borrow from another department of Labor regulation for businesses who are subject to the FM la or family medical leave act.

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Paul Carelis: Some identical requirements there, so if you have multiple entities, but in are are subject to the fly because they’re considered to be common and by that definition.

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Paul Carelis: Our best our best stab at this in terms of what we know, right now, and what we have to go by and and speaking with some legal resources as well they’ve suggested that.

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Paul Carelis: As sherry said the Department of Labor standard same thing that we do in determining.

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Paul Carelis: Whether or not a business is subject to FM la and has to aggregate employee accounts would would fall here as well.

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Sheri Heller: And there’s a few more questions again about remote employees who appear who periodically come into the office as Paul mentioned if their remote employees, they don’t need to be tested or it be vaccinated, however.

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Sheri Heller: If they do come into the office periodically whether it’s once a month once a quarter, you know just once in a while.

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Sheri Heller: They would have to be tested the week that they are coming in, so if you decide that your testing day is going to be on Mondays.

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Sheri Heller: And that in that individual is do is coming in that Monday, they would have to have a negative test for that that particular visit and if they are not vaccinated they would have to have a mask on.

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Paul Carelis: Also, good questions yeah.

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Sheri Heller: I know it’s hard to choose.

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Sheri Heller: So who’s responsible for collecting data as as far as who’s vaccinated from temp agencies, so you do not have to worry about the temp agencies, if your employer, if you have people working for you are in your in your workforce, who are.

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Sheri Heller: employed by a temp agency and you’re paying the temp agency, it is their responsibility to collect that information on vaccination and make sure that they are complying, it is not your responsibility.

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Paul Carelis: question here is there a religious accommodation for testing so let’s say someone has a closely held religious belief that prevents them from getting the vaccine and.

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Paul Carelis: Then, then go on to say, you know that that closely held religious belief, also would would be violated in a testing scenario so.

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Paul Carelis: it’s hard to say without knowing that the particulars of the situation, these are kind of on a case by case basis, but you know the the more.

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Paul Carelis: The more accommodations that someone requires You then have to weigh that against the potential of being in compliance with your requirements as an employer.

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Paul Carelis: And the safety of the workplace, you know, assuming that there were going.

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Paul Carelis: along the lines of OSHA has the standard in place to prevent or do their best to prevent for coven 19 from entering the workplace.

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Paul Carelis: And then, if you have someone who is not able to be vaccinated nor be able to be tested, you know what kind of threat, as opposed to the workplace so again it’s really a case by case basis, but.

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Paul Carelis: There have been businesses, namely some of the airlines were kind of the first to do this, but.

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Paul Carelis: I know that there are some of the airlines, who, when they have folks who are claiming medical or religious exemptions from from some of these things.

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Paul Carelis: They are kind of temporarily removing them from the workforce, if they were positions that were in contact with with other employees or with the public, so.

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Paul Carelis: You got to be very careful when you’re dealing with accommodations and reasonable accommodations.

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Paul Carelis: But there are there are a lot of avenues to pursue there and and a lot of options you just want to do it carefully and it was a strategic partner.

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Sheri Heller: When it comes to religious accommodations the best practices to not necessarily.

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Sheri Heller: contest, whether these are sincerely held religious beliefs go under that assumption that this is sincerely held me to just believe, but what you can do is ask them a the employee to show you.

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Sheri Heller: To explain why the vaccination with his would violate that sincerely held religious belief.

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Sheri Heller: On it to the best of my knowledge, and if i’m incorrect, please anybody jump into to correct me, but there are no major religions that prohibit somebody getting tested or vaccinated there are some that don’t that don’t prescribe.

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Sheri Heller: To to medical treatments in general but there aren’t really too many.

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Sheri Heller: accommodations on the religious side, but on the medical side I just had recently added a client contacted me because one of the employees is actually refusing to be tested because she says, you need a medical because of a chemical in the swab.

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Sheri Heller: So additional research on that and there actually are no chemical than the swamps However, the swabs are sanitized just like many other medical devices using us a particular gas, which I can’t remember the name of right at the moment.

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Sheri Heller: But there is no, there are no issues with that or any allergies related to that so we sort of debunk that one pretty quickly.

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Definitely yeah.

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Paul Carelis: yeah so and, in the case.

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Paul Carelis: Where where there isn’t an issue with the testing, but there is a medical religious accommodation for the vaccine itself, provided that amenable to the business you shouldn’t be a problem there.

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Paul Carelis: In terms of good question here about segmenting employees and requiring some w X knee and others to allow for for the testing and masking option.

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Paul Carelis: You really want want to build build the business case around around why certainly want to avoid anything that could get you in the hot water in terms of disparate treatment or disparate impact or discrimination.

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Paul Carelis: So you really want to make the business case as to why why those would be segmented out so.

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Paul Carelis: I think the the easiest and most common pathway to that would be folks who are interacting with the public or your customers or your clientele.

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Paul Carelis: That you know if they’re in that setting where they’re going to be working directly with.

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Paul Carelis: members of the public or be working in close quarters with with peers and coworkers that you know you can clearly make the case as to why that would be necessary versus people working in more isolated conditions are not in the presence of others.

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Paul Carelis: would be able to have a different requirement so.

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Paul Carelis: And again, I think documentation is your best friend in something like this and and kind of building your your good faith effort, so you do just want to come up with with your business case for it, and I do suggest documenting that.

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Sheri Heller: got a few quite a number of questions in here about New York state New York City and some of their vaccine mandates and I know that here in Boston we have vaccine mandates and certain in certain for certain.

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Sheri Heller: Groups so you’ll really need to defer to it depends on what city and state that you’re in so you’ll need to kind of look at all of it combined to see what where you fall in what you need to comply with so it’s kind of hard to answer those questions without more information on that.

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Paul Carelis: yeah and then there’s questions about what what’s acceptable as proof, which is good.

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Paul Carelis: A good question, I mean in terms of what OSHA saying right now is that generally the information that should be included on on the proof or on the document should be the employees name.

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Paul Carelis: The type of the vaccine administered the dates of the administration of the vaccine and the name of the health care professional or clinic that administered it.

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Paul Carelis: And they go on to say that some state immunization records may not include one or more of these data fields.

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Paul Carelis: But you can still rely upon the state immunization records as an acceptable proof of vaccination, so I know there are questions about the New York pass.

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Paul Carelis: Unless they say otherwise as of right now, if he says that it’s state approved as proof of vaccination for a state or city ordinance then it’s also acceptable under the ETS.

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Sheri Heller: or over a remote meeting.

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Sheri Heller: So this is this has been a very good question, especially for you when we’re talking about PCR tests generally the quickest you’re going to get that is within 24 hours so.

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Sheri Heller: If I mean I in it in a perfect situation if you were opting for that weekly testing.

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Sheri Heller: You bring employees in say 15 minutes before their shift starts have them do the rapid test right there with somebody monitoring it.

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Sheri Heller: and make sure that it’s you know it’s done properly and and to read the results, and then you know as long as it’s negative but them, you know go you’ll go to work, but you know there’s a lot of variations of that so, can you watch them do it via zoom.

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Sheri Heller: or facetime I believe so, but there has been no exact.

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Paul Carelis: Right yeah I mean they do mention in the standard in terms of observation that are a Tele Doc is acceptable so like um you know the remote healthcare provider so.

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Paul Carelis: yeah I mean at the end of the day, your guess is as good as mine, but I would tend to think that you know, a virtual review by the employer would would also be okay.

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Paul Carelis: Again, just just document that as best you can.

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Sheri Heller: has been approved for an individual does the employee have to test weekly So even if you have if you decided to go with a vaccine mandate.

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Sheri Heller: You are still going to be required to provide accommodation reasonable accommodations for certain individuals for medical or religious reasons, so, even if the employee has been approved for an exemption.

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Sheri Heller: They still have to follow that weekly testing Ian masking of the are coming into the workplace.

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Paul Carelis: question about documenting employees that that do test positive in and not needing to weekly test for the 90 days like I mentioned.

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Paul Carelis: i’ll do my best to obtained, you know the positive test results, so if it’s from a lab.

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Paul Carelis: Get that whatever whatever you documentation can have to show the positive test result and the date to kind of have your your clock ticking them to avoid any laps and compliance and having anything go beyond those 90 days and failing to resume the testing requirements applicable.

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Sheri Heller: So here’s the question part of that you know I think it’s a darn good question I don’t know.

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Paul Carelis: I don’t know how I would answer boy buckle up.

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Sheri Heller: on the spot, so if you do end up allowing home test, how do you maintain a record of that you just take a picture of it because we’ve got to maintain records of the the test every year.

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Paul Carelis: So again, you know, this may be decided by the courts or the agencies and practice, once this rolls out.

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Paul Carelis: Over the following weeks and months for me as an employer if I was doing this and I tend to be.

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Paul Carelis: A little more risk averse than others and a little bit more conservative in compliance recommendations.

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Paul Carelis: I probably would would take a picture of it, and you know, ultimately, OSHA might decide that.

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Paul Carelis: You know, some kind of had a station from the employer, saying they they observe the test, and it was negative.

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Paul Carelis: may end up being acceptable but to cover my bases I probably would would snap a photo of the negative test and a couple of with a quick statement signed by the by the employer, whoever from representing the employer observed it.

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Sheri Heller: yeah I would tend to agree with that now, when i’m super surprised about in the list of questions we’ve gotten so far, though I haven’t gone to all of them, yet is that I don’t see a lot of questions about the availability of.

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Sheri Heller: The rapid tests, right now, or the lack of availability and happy tests.

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Sheri Heller: And and i’ve had that question from a couple of clients and I have to say that, and what i’ve been telling them is we’re going to have to cross that bridge when we come to it because that’s not so bad boy ninth number one.

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Sheri Heller: Number two as of is it as of this week, I think that in health insurance providers are going to have to cover the cost of at home rapid tests.

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Sheri Heller: So that won’t be that cost for employees, any longer, they can actually get reimbursed for that from their health care provider, excuse me.

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Sheri Heller: So I think when it comes to the availability of the rapid tests in or in war PCR tests for that matter, I think we’re going to have to cross that bridge when we come to it in February.

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Sheri Heller: I would imagine that if we’re still in the same state as far as that availability is concerned, I would imagine that OSHA is going to have to relook at this I can’t I can’t see how they could require employers to test when there aren’t any tests available.

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Paul Carelis: yeah and I think in terms of delays for for tests that aren’t considered rapid I believe there was some guidance recently as part of the faqs added.

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Paul Carelis: That as a good faith effort if if we’re awaiting results and trying to see if I can find it quickly, but I believe there was something where you’d want to kind of follow the protocol that obviously they’re masking and all of that and.

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Paul Carelis: If you’re making good faith, effort and otherwise, you know previous tests have been negative and whatnot that if we’re awaiting result of a test and it’s getting delayed and delayed that.

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Paul Carelis: I want to verify this, but I believe they said it, you know you would be able to have them in the workforce pending, knowing that they took the test just awaiting their results.

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Sheri Heller: There was somebody asked wanted to confirm that the time employees spend getting testings compensable time, and that is under the fair Labor standards Act, the FSA because if you are requiring somebody yet medical attention.

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Sheri Heller: or a medical exam which the task would fall under that you if the employer is requiring it, you do have it is compensable time so.

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Sheri Heller: If even if they’re going let’s say on their day off that would still be considered compensable time, and right now standing in line for a PCR tests for two to eight hours i’ve heard some some horror stories about that you know could be is going to be a bit of a challenge.

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Sheri Heller: Excuse me, but on the vaccine side the ETS has very specific in the in the faq that they issued.

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Sheri Heller: That, if an employee he decides on their day off to get the vaccine that wouldn’t necessarily be compensable time, but if they’re getting the vaccine during work hours that would be compensable time.

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Paul Carelis: And, and I did actually just received confirmation on.

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Paul Carelis: The Okay, the official okay from OSHA for employers to observe test results virtually so that is that is officially okay.

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Sheri Heller: Well you’re quick.

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Paul Carelis: what’s up yeah.

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Sheri Heller: And oh here’s a really good question if an unvaccinated employee gets coven 19 recovers do they have to be tested weekly again.

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Sheri Heller: And that, yes, they do, and again as Paul mentioned it’s that 90 days from when they first tested positive there’s sort of you don’t have to test them, because even once they’re done with symptoms, they might still test positive for coven.

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Sheri Heller: But, having had coven does not does not fall under that fully vaccinated.

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Sheri Heller: criteria so somebody who has Kovac has had code and has some of those antibodies actually does not have the same protection as somebody who has been fully vaccinated.

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See.

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Sheri Heller: Or is a fish shield acceptable for a face, covering now, so the the ETS has a really specific and Paul went through that list of of the.

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Sheri Heller: The the mask requirements in it’s very, very specific, the only time you might use a shield, in place of a mask is for any medical comment i’m sorry medical or religious accommodations.

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Sheri Heller: But otherwise a face to face shield, in place of mass not be sufficient, and even, as I see a lot of people wearing gators they say very specifically that gators are not permitted because they’re just not thick enough.

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Sheri Heller: Excuse me, so they would need to follow the exact guidance under the ETS for face coverings, with the exception of accommodations.

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Sheri Heller: read up on the hour here alright.

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Sheri Heller: Alright, so I hope we got to your question.

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Sheri Heller: Excuse me, as we mentioned earlier the slide deck and to the will be sent out along with the link.

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Sheri Heller: And we will take a look at the questions that came in and any questions that we weren’t able to answer over through the presentation or during the Q amp a we put together a quick faq on the.

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Sheri Heller: On the remaining questions and try and get back to you on those great and I will turn it back to me to take us home.

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MP: Thank you, sherry and Paul lots of great information on a really complex topic be sure to join us next week same day same time for are very popular semi annual HR legislative update.

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MP: you’ll find out everything you need to know about current and pending HR regulatory changes for 2022 or.

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MP: visit our website to register and check out our full calendar of events and available resources and sherry mentioned we’ll be sending out the recording of the webinar and the slides this afternoon Thank you everyone for joining us and have a terrific day.