My HR Professionals is keeping our clients up-to-date with all of the changing regulations concerning COVID-19. We will continue to keep up-to-date information on this page. Still we are available to answer questions via phone or email. For our Human Resource Administration Service clients, this comes at no additional charge.
Updated: November 15, 2021
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OSHA’s Emergency Temporary Standard on COVID-19 Vaccination and Testing
On November 4, 2021 OSHA released an Emergency Temporary Standard (ETS) that requires all employers with 100 or more employees to mandate their employees (with some exceptions) to be fully vaccinated or, if unvaccinated, produce a negative test result (at least) weekly and wear face coverings in the workplace. This ETS is facing multiple legal challenges, however, impacted employers should still familiarize themselves with the requirements so they can comply if the Rule becomes effective.
The OSHA Rule generally covers employers with a total of 100 or more employees in the United States, whether or not they are dispersed throughout various locations. The 100+ employee threshold includes:
- part-time and full-time employees
- seasonal employees (not obtained from a temporary staffing agency)
- temporary employees (not obtained from a temporary staffing agency)
- remote-work employees
- employees who work exclusively outdoors
- minor employees (who may need parental consent to be vaccinated or tested for COVID-19)
The following workers are not included in the employee count:
- independent contractors
- workers obtained through a staffing agency
An employer will be covered if it attains the 100+ employee threshold at any time while the OSHA Rule is in effect, even if its employee count later dips below the threshold.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit, in response to a lawsuit filed by various plaintiffs, issued an order temporarily blocking the OSHA ETS. The court's order explains its suspension of the ETS only by saying that the petition "gave cause to believe that there are grave statutory and constitutional issues with the mandate" and says that the ETS is "STAYED pending further action by this court." There are more than 24 other states that have also filed suit to challenge the ETS. With the additional challenges filed in multiple circuit courts of appeals, the Fifth Circuit may lose jurisdiction to hear the case under an obscure process that could ultimately result in the case being transferred to another appeals court or even potentially to the US Supreme Court.
In the meantime, it is important to realize that the ETS has not been repealed; it has only been suspended pending resolution in the courts. If the ETS is upheld in the courts and is enacted as written there will be a very short time frame to comply. So it is strongly encouraged that you continue to move forward with the administrative compliance portion of the standard. The ETS states that by December 6, impacted employers must comply with all requirements other than testing. This includes:
- Establish a policy on vaccinations (See OSHA’s “COVID-19 Vaccination, Testing and Face Covering Policy Template” that is linked below. If used, please note that the policy must be made site specific.)
- Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain a record and roster of vaccination status
- Provide support for employee vaccinations
- Require employees to promptly provide notice of positive COVID-19 test of COVID-19 diagnosis
- Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes
- Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (attached)
Beginning on January 4, 2022, unvaccinated employees must undergo weekly testing. Any employee who has received all doses of the vaccine by January 4 does not have to be tested.
To find out more information, click the links below.
Center for Medicare & Medicaid Services (CMS), COVID-19 Staff Vaccination requirements for Health Care Providers and Suppliers
The staff vaccination requirement applies to the following Medicare and Medicaid-certified provider and supplier types: Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal 2 Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Federally Qualified Health Centers, and Long Term Care facilities.
For more information click the links below:
Last updated 3/26/2021
Employer Credit for Paid Sick Leave and Family Leave (FFCRA): The Families First Coronavirus Response Act (FFCRA) mandatory leave expired 12/31/2020 but became Optional for eligible employers effective January 1st, 2021.
ARPA expands the scope of the refundable payroll tax credits for emergency paid sick leave and expanded family leave (EPSL and EFMLA), enacted in the Families First Coronavirus Response Act (FFCRA), for leaves taken through September 30th, 2021.
Highlights of the provision:
- The EPSL bank of 80 hours and EFMLA bank of 12 weeks of leave resets on April 1, 2021. For example, someone who exhausted their 80 hours will have a new bank of 80 hours available to use effective April 1st.
- ARPA mandates an employer cannot claim credits if paid leave favors highly compensated employees, full-time employees, or that discriminates based on how long employees have worked for the employer.
- Three additional qualifying reasons that pay at 100% of the employee’s daily wages (up to a maximum of $511 per day) have been added to include when the employee is:
- Getting a COVID-19 vaccine.
- Recovering from complications due to receiving the vaccine.
- Awaiting test results or diagnosis (clarification from previous relief bills).
- ARPA expands the EFMLA to allow for use for all the qualifying reasons for which EPSL leave may be used, which include the new reasons listed above.
- For EFMLA the 10-day unpaid waiting period has been eliminated, meaning the entire 12 weeks of EFMLA is paid.
- The EFMLA rate of pay continues to be 2/3 of the employee’s daily regular wages, up to $200 per day (regardless of the reason for the leave).
- For an employer to claim the available tax credits, the employer is required to comply with all the obligations that were previously set forth in the FFCRA regarding the payment of EPSL and EPFL, job protection and restoration, and non-retaliation.
We will publish updates on our COVID-19 Resource page if the IRS and/or DOL provides guidance.
Next Steps for My HR Professionals Clients:
- If an employer decides to continue offering this paid leave, have eligible employees continue to complete the ‘Leave Submission Form’ found within our COVID-19 resource page- https://myhrprofessionals.com/covid-19/. This form has been updated to reflect information according to the ARPA. Upon receiving this form, your payroll processor will continue to confirm with you the approval of the leave prior to processing payroll and will notify you if there are no available hours to take in 2021.
- If you have a time & attendance account with My HR Professionals-
- The EPSL and EFMLA paid time options will remain active, and balances will reset effective April 1st. This means employees who have previously used this leave will show with no hours used under the various hour banks on April 1st.