NOTE: analysis current as of Nov. 19, 2021.
KACo will be hosting a free one hour webinar on this topic on Nov. 30, 2021 at 11 a.m. EST. You can register for the webinar here.
The U.S. Occupational Safety & Health Administration (OSHA) issued an emergency regulation on Nov. 4, 2021 requiring employers with 100 or more employees to adopt and enforce a written policy mandating that most employees be vaccinated against COVID-19 or require most unvaccinated employees to provide their employer with weekly COVID-19 test results and wear face masks.
In Kentucky, this regulation will be applicable to public employers including the state, counties, school districts, special districts and cities, as well as private employers.
The federal courts have currently halted implementation of the federal rule, however that could change at any time. Therefore, it is recommended that counties prepare for this possibility.
Which counties are impacted?
This regulation impacts all counties with 100 or more employees countywide regardless of hiring authority. For example, while various constitutional officers – such as the sheriff, county clerk and jailer – may each have less than 100 employees, if the county as a whole has 100 or more employees, the county, including these officers’ employees, are subject to this regulation.
What does this regulation do?
This regulation requires counties to have an OSHA-compliant vaccination policy in place by Dec. 6, 2021. By this date, counties will need to know which employees are vaccinated.
Employees who are not vaccinated are required to wear a mask when at an indoor worksite.
There are other requirements that need to be in place by Dec. 6, 2021, but verification of employee vaccination status and the masking requirement are the high points.
Beginning Jan. 4, 2022, most employees who are not fully vaccinated will have to be tested for COVID weekly and wear masks.
Are there exceptions to the requirements?
Yes – Religious and medical accommodations are still required, but they must be legitimate requests. Failure to follow this requirement can result in penalties.
What are the penalties for not complying?
Failure to comply with these OSHA regulatory requirements can result in a $13,653 fine per violation. Repeated or intentional violations carry a steeper fine of up to $136,532.
What should counties do now to prepare?
While this OSHA regulation is not currently being enforced, counties should consider creating their OSHA-compliant vaccination policy now in case the regulation takes effect. The OSHA website (https://www.osha.gov/coronavirus/ets2) has vaccination/masking/testing policy templates (second column) that counties can utilize to create their policy. This website also has a good Fact Sheet and an excellent FAQ section. Of particular interest, FAQ 12A lists all the policy requirements and deadlines.
In addition to the OSHA website, the National Association of Counties has an easy-to-read overview of these OSHA requirements (https://www.naco.org/resources/featured/employer-covid-19-vaccine-mandate-faqs).
Additional resources
KACo will be hosting a free one hour webinar on Nov. 30, 2021 at 11 a.m. EST. You can register for the webinar here.
Please contact KACo General Counsel Tim Sturgill (tim.sturgill@kaco.org) or KACo Attorney Rich Ornstein (rich.ornstein@kaco.org) with any questions.
