While the fate of the Biden administration’s COVID-19 vaccine and testing mandate for employers with 100 or more workers is now in the hands of the federal court system, we encourage impacted businesses to continue to prepare to get into compliance.

Legal guidance we have received recommends getting vaccination information from your employees now to create the roster. That way, you are ready to act if the court upholds the mandate for vaccinations or weekly testing.

It’s too much of a gamble to rely on the current legal pause on implementation and that the initial court ruling of a “gross overreach” will be the ultimate decision. Fines for employers range from nearly $14,000 per violation up to almost $140,000 for willfully failing to comply with the mandate or a repeat violation.

The mandate is slated to take effect January 4, with some key compliance markers kicking in exactly a month earlier.

The final rule from the Occupational Safety and Health Administration (OSHA) has many details to sort out. Foremost is how the employee count is calculated. It’s a companywide total, not a site-specific count. So a company could have 50 locations with only two or three employees per site and have to comply.

The date for doing the employee count was November 5. If your employee count reaches 100 after that date, you will still have to follow the rule. It’s worth noting that if your employee count goes below 100 at any point, it doesn’t matter. Once you are in, you are locked into complying.

Count all employees – full and part time, even if they are exempted from taking the vaccine. Temporary employees from staffing agencies would not count toward your total.

All employees are covered under the rule unless they work entirely remotely, are at a workplace with no other people or work exclusively outdoors.

Additionally, employers are subject to requirements for reporting and recordkeeping, which will be crucial to avoiding any fines.

In terms of employer expenses, employers are not required to pay for weekly testing (every seven days) for employees who choose not to get the vaccine. However, employers must pay employees for the time off to get vaccinated and, if needed, allow employees to use leave time or provide it to recover from any vaccine side effects.

Employers also must ensure all unvaccinated employees are masked while in the workplace.

December 5 is the date for compliance for both the paid time off allowance and supplying masks.

Again, there is a stay on OSHA’s implementation of the mandate. But once a final court ruling is announced, things could move very quickly from OHSA if the outcome is in its favor.

The webinar we hosted last week with our Wellness Council of Indiana – led by attorneys from Ice Miller LLP – was extremely informative about the OSHA rule and how the court proceedings could impact it. The webinar goes into further detail about all the pertinent items discussed in this story and more. If you are an affected employer, I encourage you to watch the recording. The accompanying PowerPoint is also available.

Moreover, it’s important to note that the Centers for Medicare and Medicaid Services’ interim final rule for health care workers and President Biden’s executive order on mandatory vaccinations for federal contractors are unchanged by what’s happening in the courts. Those are moving full steam ahead.

If you have any questions, please reach out to Jennifer Pferrer, executive director of the Wellness Council of Indiana at (317) 264-2168 or jpferrer@indianachamber.com, or Mike Ripley, the Chamber’s vice president of employment law and health care policy, at (317) 264-6883 or mripley@indianachamber.com.

Resource: Kevin Brinegar at (317) 264-6882 or email: kbrinegar@indianachamber.com