What the Federal Vaccine or Testing Requirement Means for Michigan Businesses

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On Nov. 4, the U.S. Department of Labor released emergency rules from Occupational Safety and Health Administration (OSHA) that will officially go into effect Jan. 4, 2022. As of that deadline, employees at companies of 100 or more must be fully vaccinated against COVID-19 or get tested for the virus weekly. These rules will impact more than 80 million workers at medium and large businesses. OSHA regulations will force employers to require that unvaccinated workers test negative for COVID-19 at least once per week and mask up in the workplace.

As of Nov. 6, however, the Fifth U.S. Circuit Court of Appeals granted an emergency stay on these rules, seeking response from the government by 5 p.m. Monday, Nov. 8. The court did not specify if this would have a nationwide effect or simply apply to the states within its jurisdiction.

In the meantime, the Michigan Occupational Safety and Health Administration (MIOSHA) offered additional guidance for businesses in Michigan. Highlights include:

Implementation

There are two compliance periods.

  • Companies must have their plan finalized by Dec. 5, according to the OSHA rule.
  • Companies must have written documentation of all who are vaccinated or put protocols in place for a weekly testing program by Jan. 4.

Employers have two program choices to follow.

  1. Employers can implement a vaccine mandate program with required exemptions.
  2. Employers can have a program that recognizes those that are vaccinated but implement a testing protocol for everyone else.

Employers have to maintain a record of vaccination status and tests. Records will need to be kept for six months.

Fines for businesses that do not comply will be $7,000 from MIOSHA and OSHA can fine the organization up to $13,600 per violation, per day, per employee.

Conditions

According to the Labor Department, “new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing.”

The 100-employee count applies to all employees at a company, including part-time and seasonal employees. Note, once a company reaches 100 employees, they will always be considered a 100-employee company even if layoffs take the count below 100. The rules also apply to any organization with more than 100 workers, even if they have multiple locations where fewer than 100 workers are present at that location.

The rules do not apply to employees who exclusively work from home, work outdoors exclusively, or work in an environment where no other employees or customers are present. While the rules do not apply to employees who exclusively work from home, they do apply to those working from home temporarily.

OSHA will host an extensive FAQ on its website. Highlights include:

  • Employers will not have to pay for tests.
  • Employees cannot self-monitor or self-report. Another party must be present to observe.
  • Employers are required to provide four hours of paid leave (in addition to existing paid leave allocations) for getting vaccinated and paid time off for those that have adverse reactions to the vaccine.
  • Vaccinated employees are not required to wear masks in the workplace. Masks are required for unvaccinated workers beginning on Dec. 5.

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