BUFFALO, N.Y. — January 4, 2022, is now the deadline set by the Biden Administration for those who work at companies with more than 100 employees to either be fully vaccinated or undergo weekly testing for COVID-19 in order to keep their jobs.
As a further measure to compel vaccination among those workers, companies face heavy fines if they are found to have employees who are out of compliance.
There are 84 million Americans who work at companies impacted by the mandate.
However, as it is not clear how many of those individuals have yet to get their shots, it's unknown how many of them this might effect.
Companies are under no obligation to pay for the required weekly testing of unvaccinated workers, so it could get expensive for vaccine holdouts.
At the same time, though, they must give paid time off for employees to get the shots and sick leave to recover from side effects that prevent them from working. Requirements for masks and paid time off for shots take effect Dec. 5.
The requirements will not apply to people who work at home or outdoors, and workers will be able to ask for exemptions on medical or religious grounds.
The situation in Buffalo
In the greater Buffalo area, the largest employers are the state and federal governments, where workers are already under vaccine mandates of some form.
The next-largest group of employers includes the areas health systems, whose workers are already subject to state vaccine mandates.
The next-largest group of employers are businesses including M&T Bank, a spokesperson for whom would only say, “We’re actively reviewing the new federal rules,” and Tops Friendly Markets, whose spokesperson told us, "Tops continues to follow the Hero Act requirements to ensure the safety of our associates and customers which has been and will always remain a top priority. We will continue to monitor the guidance of the Department of Labor and OSHA and will comply accordingly."
Seneca Gaming Corporation, which employs thousands of Western New Yorkers at its three casinos in the region said in a statement, "We continue to monitor the rollout of the new federal COVID-19 vaccine mandate for large employers. In keeping with our role as an employer of choice in the region, we’ve already incorporated our commitment to COVID-19 safety into our daily operations, our overall health and safety plan, as well as our ongoing recruitment and retention efforts.”
2 On Your Side also reached out to several other larger employers in Western New York.
But none of them answered specific questions, including what percentage of their workers have already gotten shots, if the company will pay for the testing of those who have not, or if they are concerned about the impact it will have on their ability to serve customers if they have to let employees go in an already stretched labor market.
Comply, or else
The Occupational Safety and Health Administration (OSHA) is being used to force the issue, as businesses face fines of almost $14,000 for each worker found out of compliance.
However, it may be hard pressed to enforce the rules.
According to the Associated Press OSHA only has 1,850 inspectors to oversee 8 million workplaces, so it's likely OSHA will only be able to target businesses if a complaint is received.
See you in court
OSHA drafted the rules under emergency authority meant to protect workers from an "imminent health hazard."
However, long before the mandate takes effect in eight weeks, it's expected to be challenged in court, as attorneys general in more than two dozen states have indicated they plan to sue, arguing that only Congress can enact such sweeping requirements under emergency authority.
What businesses need to know
The Buffalo Niagara Partnership sent out a bulletin advising its members on the main points of the mandates, including the following guide to frequently asked questions.
1. What does the rule require?
All employers with 100 or more employees must ensure their workforce is fully vaccinated or require weekly testing of unvaccinated workers. If employers give employees a choice between vaccination and weekly testing, those employees opting for weekly testing must be required to wear a face covering while at work.
2. The rule applies to employers with over 100 employees. How are full-time and part-time employees counted?
Part-time employees do count toward the total number of employees. However, independent contractors do not count toward the total number of employees.
3. Is the 100 employee threshold counted per location, or collectively?
Collectively. OSHA will use the “enterprise rule,” meaning all employees associated with the entire enterprise will be counted together.
4. Are employers responsible for administering tests to unvaccinated employees? Who is responsible for the cost of testing?
No, employers are not responsible for administering tests to unvaccinated employees, although offering on-site testing to employees may make the process quicker and simpler. Employees are responsible for paying for their own tests. Companies are able to bill employees for COVID-19 testing on site.
5. Are employers required to provide paid time off for vaccination or testing?
Employers are required to provide paid time off for an employee getting vaccinated (up to four hours per vaccine). Employers are not required to provide paid time off for an employee getting tested. Employers are also required to provide paid sick leave to employees recovering from the side effects of the vaccine. A reminder: paid time off mandates related to COVID-19 vaccines already exist in New York State.
6. How long should I keep record a of employees’ negative tests?
The employer must maintain a record of each test result which must be maintained and preserved while the rule remains in effect.
7. By when must employees be vaccinated or test under this rule?
The rule takes effect on January 4, 2022.
8. What is expected of contractors who do business with the federal government?
Under a different Executive Order and Safer Federal Workforce guidelines, federal agencies will add a requirement to contracts that on-site contractor employees are all vaccinated. Unvaccinated employees of contractors with preexisting contracts must mask and test regularly. The Executive Order states that this rule does not apply to grants.
9. What is the penalty for an employer that is not in compliance with this rule?
Employers who do not comply can be fined $13,653 for each violation.
10. How should I handle employees who claim a belief or physical limitation prevents them from being able to take the vaccine?
If employees refuse the vaccine, employers must implement mandatory weekly testing and mask wearing.
11. Are employees who tested positive for COVID-19 in the past exempt from this requirement?
No, the rule does not make an exception for those with immunity through a prior COVID case.
12. If I mandate that my employees get the COVID-19 vaccine, can I be held liable for any possible adverse reactions an employee may experience from the vaccine?
Employees who have an adverse reaction to a vaccine taken as a condition of employment may be eligible for worker’s compensation. Employers should also give paid time for workers to get vaccinated or recover from any side effects. An attorney should be consulted to address specific situations and questions.
13. Is this rule constitutional?
Heavy litigation is expected to challenge the legality of this rule. The BNP will keep you aware should any judicial updates change what is required of you by the federal government.
Clarification: An earlier version of this story reported that companies would be required to pay workers for the time they may be off-site getting a weekly test. They are not required to do so, but must give workers paid time-off to get the shots.