Most employers have never faced a mandate even remotely close to President Biden’s emergency directive that companies force their workers to avert spreading COVID-19. Already, state attorney generals are lining up to sue the federal government over the historic requirement, blasting it as an overreach.
But legal experts say the White House did its homework before announcing the mandate on Sept. 9 and following up Nov. 4 with the specifics of the Emergency Temporary Standard, essentially an extraordinary order of the executive branch. Some elements take effect as early as Dec. 5, with full implementation scheduled for a just a month later. Court reviews could extend considerably beyond those dates.
The schedule will no doubt have many employers scrambling to comply. Here’s a review of the particulars aired to date, with the perspective of restaurateurs in mind.
What companies have to comply?
Right now, the regulations detailed by the Occupational Health & Safety Administration (OSHA) apply solely to companies employing at least 100 people. But the agency noted in airing the particulars Thursday morning that it’s already looking to lower that threshold to include smaller operations. No timetable was revealed for that expansion.
When does the requirement go into effect?
Proof of full vaccination—meaning two shots of the Pfizer or Moderna versions—must be provided by Jan. 4.
Starting Dec. 5, employers must provide up to four hours of paid work time for employees to get the shots.
Who’s included in that employee count?
The tally should be a head count: Each employee counts, regardless of whether they’re full- or part-time. Similarly, the tabulation should include seasonal workers. Workers who spend 100% of their time outdoors are not covered by the mandate.
What if I’m a franchisee or part of a multi-restaurant operation?
The 100-employee threshold applies to an employer, not to a location. So a company with four restaurants each employing 25 individuals would hit the 100-worker trigger, 4 X 25. Because franchisees employ and pay their own staffs, they would only be covered if they have at least 100 workers. Franchisors face the same test. But the count isn’t computed on a chainwide basis.
Are there any outs?
Employees’ only alternative to getting vaccinated is being tested on at least a weekly basis for COVID-19. If they test positive, that information has to be conveyed to the employer, and that worker will not be allowed to work. If they test negative, that proof has to be provided to the employer.
Getting those tests appears to be the responsibility of the employee. But employers are required to keep the records and have them available to prove compliance.
The set-up amps up the pressure on employees to opt for vaccines. The restaurant industry favors vaccinations over tests because operators would be spared the record-keeping burdens.
What if my restaurant is located in Texas or Florida, where employers are forbidden to impose a vaccine mandate on employees or guests?
The federal government says you’ll still have to comply if you employ at least 100 people. According to OSHA, the emergency order setting the mandate preempts and invalidates any state or local requirements “that ban or limit an employer’s authority to require vaccination, face covering, or testing.”
That assertion is almost certain to be challenged through the court system.
What will the testing cost me?
One of the surprises included in the specifics of the mandate is an explicit stipulation that the federal government will not require employers to pay for the tests, meaning employees will have to foot any testing costs. Any fees related to gathering or storing results, such as charges from a third party, will apparently fall on the employer.
However, OSHA stresses that current state regulations and collective work agreements may require employers to pay for tests.
What if employees are anti-vaxxers?
They can always opt for the weekly testing. Otherwise, they may have to work elsewhere. The grounds set by the federal government for avoiding a COVID vaccine are extremely narrow. A worker can refuse if he or she has a legitimate health reason for refusing to roll up their sleeves, such as an allergy to the serums used.
They can also decline on the basis of legitimate religious objections, but employers were given an override by the U.S. Equal Employment Opportunity Commission. A religious exemption can be denied if it poses an “undue burden” on the employer, defined in this case as anything more than a minimal financial obligation.
What’s this about a mask mandate?
Another of the surprises included in the particulars was a requirement that all employees of qualifying companies wear facemasks if they’re not fully vaccinated. That mandate goes into effect Dec. 5. Employers are required to police the provision.
Where can I get more information?
The best source we encountered for guidance and details on the requirement is the Frequently Asked Questions section of OSHA’s webpages on the topic. You’ll find that page here.