Biden plans to mandate COVID vaccine for private employers

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On Thursday, September 9, 2021, President Biden announced his plan to mandate private employers with 100 or more employees require all their employees to be vaccinated against COVID-19.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. Employers failing to comply with the mandate could be fined as much as $14,000 per violation. The White House said this new rule would impact more than 80 million workers.

President Biden also signed an Executive Order directing the existing mandatory vaccine standard for federal government employees be extended to employees of contractors that do business with the federal government. As part of this effort, the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institutes of Health will implement their previously announced vaccination requirements that cover 2.5 million people. Government contractors will need to watch carefully for guidance from the Safer Federal Workplace Task Force to understand the scope of the vaccine mandate for their employees.  The Centers for Medicare & Medicaid Services will also require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.

The timeline for implementing the private employer vaccine mandate was not announced. OSHA indicated the ETS will be published “in the coming weeks.” It is also not clear whether employers will be required to pay employees for time off to get vaccinated or to recover from vaccine side effects or to pay the costs of weekly testing or time off for testing for unvaccinated employees. However, OSHA’s previous ETS covering only healthcare employers did require employers to provide paid leave for employees to get vaccinated or recover from vaccine side effects. So, private employers should anticipate the possibility that OSHA’s new ETS will require the same paid leave for all private employers with 100 or more employees. In the meantime, there will be many lawsuits seeking to delay or prevent implementation of the announced vaccine mandate. We previously wrote about considerations for employers when mandating vaccines (https://www.poynerspruill.com/thought-leadership/practical-and-legal-considerations-related-to-vaccine-mandates/), which we encourage you to review. Employers should be aware of the need to consider disability and religious accommodation requests to the new ETS. Employers should stay alert for updates on the ETS and any court action to delay or prohibit it.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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