President Biden’s announcement earlier this month that private sector employers with 100 or more employees will be required to have all employees either vaccinated or tested weekly has left many employers scrambling. This is especially true for those who were making vaccinations voluntary for their workforce up until this point. In anticipation of what’s to come, many employers are now scratching their heads and wondering:
By what date will private sector employees need to be vaccinated?
Does the employer bear the cost of any required weekly testing for those who remain unvaccinated?
How will the mandate be enforced, and by whom?
How is this legal?
If you’ve been asking yourself these questions, you’re not alone. Unfortunately, until OSHA issues its Emergency Temporary Standard on the subject, it is unclear what the parameters will be for the President’s vaccination mandate for private sector employers. As to timing of implementation, if history is any indication, it could be several weeks, if not months. Even then, the Emergency Rule is going to be challenged in the courts, and the possibility of a nationwide injunction seems like a distinct possibility and could delay (or even derail) the President’s mandate.
On Friday, September 24, the Biden administration very quietly issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. Is this a preview of what may be forthcoming for private sector employers? Possibly, and so while private sector employers await the issuance of OSHA’s Emergency Standard, it’s worth considering some of the highlights of the administration’s requirements for federal contractors:
We will continue to monitor the situation and will provide an update once OSHA’s Emergency Standard is issued. Only then will private sector employers with more than 100 employees truly know what will be required of them.
In the meantime, employers should begin thinking about designating personnel to be responsible for ensuring compliance with the upcoming mandate. And, so you are not in a time crunch when the time comes, it probably makes sense to begin drafting your mandatory vaccination policy, as well as any forms that could help drive the interactive process with employees who request medical or religious accommodations.
As always, it is best practice to consult with experienced employment counsel when implementing new policies and procedures.