Private Employers Must Mandate Employee Vaccinations or Weekly Testing Under President Biden’s New Plan
On Thursday, September 9, 2021, President Biden announced key provisions of his new plan to require more Americans to be vaccinated in order to combat the spread of COVID-19. Although details have yet to be announced, there are components of the plan that have significant implications for private employers with 100 or more employees.
President Biden has tasked the Occupational Safety and Health Administration (OSHA) with developing an Emergency Temporary Standard (ETS) mandating that employers with 100 or more employees require that their employees either be vaccinated or produce a negative test result on at least a weekly basis before coming to work. Violations of the new rule will carry a penalty of up to $14,000 per violation.
While no specific date was provided, expect OSHA to announce the ETS in a couple of weeks with implementation shortly thereafter. This timeline gives employees an opportunity to become fully vaccinated before the ETS goes into effect and should spur employers to take immediate actions.
The ETS will require covered employers to provide workers with paid time off to get vaccinated and to recover from any side effects of the vaccination. Without more details, we can only speculate as to how the ETS will assign the costs of testing for those employees who remain unvaccinated. Shifting the costs of testing to unvaccinated employees and requiring them to pay for tests and use accrued time off in order to comply with the ETS requirements further incentivizes employees to become vaccinated. Putting these burdens on unvaccinated employees more closely aligns with the underlying public policy goal of encouraging vaccination, but it remains to be seen whether employers will be required to foot the bill for unvaccinated employee testing time and expense.
President Biden’s new plan also appears to expand the existing mandate requiring vaccinations for nursing home employees to also cover those who work in “hospitals, home healthcare facilities, or other medical facilities” that receive Medicare or Medicaid reimbursement. The Centers for Medicare & Medicaid Services (CMS) will be charged with implementing rules requiring vaccines for individuals in these settings, including volunteers and staff who are not involved in direct patient, resident, or client care.
It is unknown whether this ETS for private employers will exempt certain employees, as prior reviews of vaccine mandates have advised. Employers must likely still provide reasonable accommodations under the Americans with Disabilities Act (ADA) to employees who cannot be vaccinated because of a disability, or protecting employees from the requirement under Title VII if they cannot be vaccinated because of a sincerely-held religious belief. However, the weekly testing requirement seems intended to account for the qualified disability or religious exemptions to vaccination.
Authority & Challenges
While an ETS becomes effective upon issuance, it must go through the rule-making process within 6 months to become permanent. Detractors of this new plan have already promised to file suit against the Biden Administration. Such legal obstacles are likely to challenge President Biden’s constitutional authority to implement the ETS, allege that the ETS violates personal liberties, claim that agency rule-making procedures are not being followed, or contest the authority of OSHA to enforce mandates related to COVID-19 vaccinations.
Though some may find this new requirement heavy-handed, the federal government and OSHA have a history of regulating private businesses in order to protect workers. Employers have long been required to comply with safety and health standards and regulations issued by OSHA pursuant to the Occupational Health and Safety Act, which includes a general duty to provide workers with a “safe and healthful workplace.”
What Employers Should Do Now
In anticipation of OSHA’s issuance of the ETS, employers should evaluate current vaccination policies and determine whether to mandate vaccinations for their workforce or establish requirements for providing proof of vaccination or required testing. Further, this may be the best time to establish an incentive program to increase voluntary employee vaccination. And while many employers have been hesitant about collecting information from employees to determine whether they are vaccinated, now is the time to take steps to gather such information in an appropriate fashion. Consider reaching out to your insurance carrier to determine whether there is coverage for the cost of employee COVID-19 testing. Explore what type of testing you will utilize for unvaccinated employees and develop policies around that process.
Inevitably, there will be further developments concerning these recent mandates, and we will continue to track all developments and inform employers about the ever-changing landscape of COVID-19 workplace recommendations.
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