Do all employees need to be vaccinated? Three things to know about the Biden Administration’s new mandate
On September 9, 2021, President Biden announced a sweeping 6-prong approach known as “Path out of the Pandemic” – aimed at stopping the spread of COVID-19. The initiative seeks to address different areas of everyday life, including the workplace. Perhaps most significantly, the plan sets specific benchmarks and requirements for employees and vaccination – with major possible penalties for employers that do not comply.
While many details are still forthcoming, the following can be anticipated:
- Employers with 100 or more employees must have a fully vaccinated workforce or maintain weekly testing for unvaccinated employees.
The President’s initiative orders the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS) for implementation. There is currently not a defined timetable on the ETS; however, employers can anticipate more details in coming weeks – with enforcement expected within 75-days after rule announcement. Given this possibly quick turnaround, employers may want to explore their own vaccination policies and how the “transition” to mandatory status/weekly testing can be executed.
- Exceptions to the vaccination requirement will still be permissive under the ETS – however, they are expected to be narrowed. Employers that do not comply with the mandate will face potentially significant fines.
Currently, employers that require vaccinations must allow exceptions for sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964 and disabilities under the Americans with Disabilities Act. These exceptions – and the requirement that employers engage in the interactive process – will still apply; however, the federal government is expected to issue more guidance on how to approach the exceptions. For employers that fail to maintain the ETS, fines of up to $14,000 per violation (currently undefined) may be assessed. Enforcement is anticipated via OSHA inspectors/reporting.
- Federal contractors and subcontractors face expanded vaccination obligations – with no anticipated “testing option.”
In late July, the Biden Administration issued a vaccine mandate for certain federal agencies and on-site federal contractors – with the option for weekly testing for those that were unvaccinated. The President’s September 9 Executive Order significantly expands these requirements by appearing to loop in contractors and subcontractors working in connection with a federal contract. More details are expected to be released by the Safer Federal Workforce Task Force on September 24, 2021 – however, the Executive Order appears to eliminate the weekly-testing requirement option, for those that are unvaccinated, announced in July. The White House announced that federal contractor employees will have 75-days to get vaccinated. While specifics are still pending, contractors should examine their current vaccination policies and begin to think ahead on how to streamline heightened requirements in the coming weeks.
I recommend that employers start parsing these requirements now so as to avoid liability later. Feel free to reach out to me to discuss applicability to your organization.
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