On September 9, 2021, President Biden announced his administration is taking several new steps to get more Americans vaccinated. Two of these moves have already been implemented as of early September: first, the President signed an executive order mandating vaccines for federal employees. That same day, he entered an executive order mandating vaccines for workers in most healthcare settings that receive Medicare or Medicaid reimbursement. The latter applies to hospitals, ambulatory surgical settings, home health agencies and more.
The third action item, and the one creating perhaps the most controversy, is one that has not taken effect yet but has merely been proposed by the President: a vaccine mandate for many private employers. The mandate is expected to come in the form of an emergency temporary regulation issued by the Occupational Health and Safety Administration (“OSHA”), much like what OSHA has already issued with respect to employers in the healthcare sector. Because the White House has indicated this mandate will soon become more than just a proposal, employers are already asking questions about what the regulation will look like in practice.
Does every employer in America have to comply with the mandate?
No. OSHA’s rule is expected to only apply to employers with 100 or more employees. According to the President, that will affect over 80 million workers in the private sector.
When will the rule take effect?
No word yet on when OSHA will actually publish the emergency temporary regulation, but that administration is already developing it. Once it’s issued, Department of Labor officials have said they expect employers will have a period of 50 to 90 days to comply. That said, officials advise companies to begin the process as soon as possible.
What if an employee refuses to get vaccinated?
The expected mandate anticipates this scenario. The regulation is expected to provide that workers can still comply by COVID testing at least once a week. Importantly, note that any governmental vaccine mandates (including those already implemented among federal workers and in healthcare settings) build in exceptions for legally protected reasons such as disability or religious-based objections.
These exceptions will also apply in the private sector such that if an employee raises one of these objections, employers should engage in an interactive process to confirm whether an exemption in the form of an accommodation by the employer can be granted to the employee. This will be a fact-intensive inquiry that the employer should engage in carefully.
Is there anything else employers have to do other than make sure workers are vaccinated?
Yes. OSHA is also expected to require large employers to provide paid time off during the time employees are away from work to get vaccinated as well as the time it takes for them to recover from any post-vaccine side effects.
What’s the penalty for employers or employees who don’t comply?
The Department of Labor is expected to enforce the mandate by issuing fines to violating employers. Preliminary information from officials shows the penalty could be as steep as $14,000 per violation. However, critics have already pointed out that the Department of Labor and OSHA lack the resources to actually enforce the mandate, which would mean confirming proof of vaccination for millions of workers and monitoring weekly testing.
Of course, there will be many more questions once OSHA actually issues the emergency rule. Additionally, scholars and practitioners expect the mandate will face major hurdles once issued, including lawsuits challenging the executive branch’s authority to issue a vaccine requirement for private employers. Thompson Burton’s Employment Law practice group is monitoring these developments and is prepared to guide employers through questions involving this vaccine mandate and other pandemic-related issues as they arise. It is a very exciting time to be an employment lawyer and we love walking alongside business owners as they navigate this difficult terrain.