Page 21 - BusinessWest October 13, 2021

Biden Administration Mandates Vaccinations
On Sept. 9, the president announced steps that his administration is taking to boost the economy by reducing the spread of COVID-19. One step is called “Path Out of the Pandemic:
Additionally, the president signed two execu- tive orders requiring federal employees and federal contractors (and subcontractors) to get vaccinated, regardless of employee size. There is no weekly testing exception for these employees. Employees working on or in connection with a federal contract, including subcontractors, must be fully vaccinated by Dec. 8.
Employees who cannot get vaccinated due to a sincerely held religious belief or disability may be entitled to an accommodation from these requirements. However, it is up to the employer to determine whether medical and/or religious exceptions are legally permissible.
Unfortunately, there are a lot of unanswered questions out there. For instance, who will pay for the testing and vaccinations — the employer or the employee? And if an employee decides
to opt for the weekly testing option, is the time spent traveling to and from the vaccination site considered hours worked for payroll purposes? What about the time taking the test? Under Mas- sachusetts law, there appears to be an argument that this is, indeed, time worked for wage-and- hour purposes. Also, will employers who pay for testing be eligible for some sort of tax break if this needs to be paid time? Stay tuned, as we expect more guidance on these topics.
When Can Employers Expect the OSHA Standard to Be Issued?
Right now, this is anyone’s best guess. It has been about a month since President Biden announced his action plan. Assuming OSHA has been working on the ETS for a few weeks now, we anticipate it will be released sometime next
month, and almost certainly before the end of 2021. Once the ETS is released, employers will likely have a short window (maybe 30 or 45 days) to get into compliance.
What Should Employers Do Now?
Business with employees working on federal contracts or subcontracts need to act right away if they have not started taking steps to ensure compliance. The Dec. 8 deadline for federal con- tractors is not that far away, and anyone who takes a vaccine that requires two shots (i.e., a Pfizer-BioNTech or Moderna COVID-19 vaccine) needs to await several weeks after the first shot to get the second. And full vaccination, regardless of whether it’s a one-dose or two-dose vaccine, is not achieved until two weeks after the final dose.
We suggest that businesses with 100 or more employees put their workforce on notice soon that the OSHA emergency standard will require everyone to get vaccinated. Businesses need to gauge how challenging compliance might be if and when the mandate goes into effect.
If your workforce population is around 80% or 90% (or higher) fully vaccinated, compliance might not be daunting. If your rates are closer to 50% or 60% (or lower), you need to start think- ing about implementing the mandate soon, and planning for weekly testing options now. You also want to give employees a head start if they need to raise medical or religious objections to vac- cination. Employers should have medical and religious exemption forms on file to provide to provide to employees who raise objections.
MARYLOU FABBO
JOHN S. GANNON
President Biden’s COVID-19 Action Plan” (more information can be found at www.whitehouse.gov/ covidplan).
The action plan directs the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an emergency tem- porary standard (ETS) that requires all employers with 100 or more employees to ensure their work-
ers are either fully vaccinated or
get tested weekly for COVID-19. Employers will also be required to provide paid time off to employees to get vaccinated and recover from any side effects from the vaccine.
The Biden administration esti- mates this will impact more than 80 million workers in private-sector businesses. Employers that fail
to comply with the ETS will face
enforcement actions from OSHA, which may include fines up to $13,653 per violation. So, if a work-
force with 100 or more employees has 10 unvac- cinated workers who are not testing weekly for COVID-19, the business could be looking at a fine of well over $100,000. This is no slap on the wrist.
Mandate
Continued on page 23
Amelia J. Holstrom Named Partner
Congratulations to our newest partner, Amelia J. Holstrom. Amelia, a 40 Under Forty honoree and Massachusetts Bar Association Community Service Award Recipient, has been with Skoler, Abbott & Presser since 2012. She focuses her practice on labor and employment law, including employment litigation, personnel policies and practices review, wage and hour compliance, and separation and severance agreements.
Congratulations Erica Flores
on being named one of
Amelia, along with her colleagues,
Massachusetts Lawyers Weekly’s
are why employers throughout New England rely on Skoler Abbott for advice
Top Women of Law for 2021
handling challenging employment and
labor relations matters.
We’re proud to have you as part of our team.
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