Labor & Employment News Alert

Biden's Vaccine Mandates: What Does This Mean for Employers?

September 14, 2021

By: Chad J. Sullivan and Lucero Tennis Kieffer

Last week President Biden took employers by storm and released a six-pronged, national strategy called the “Path Out of the Pandemic.” This plan requires, among other things: (1) private employers with more than 100 employees to mandate that their workers be vaccinated or undergo weekly testing; (2) federal employees and contractors to be vaccinated; and (3) vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement. Below is a summary of what we know so far regarding the requirements of the Plan for employers.

Large, Private Employers: President Biden has ordered the Department of Labor’s Occupational Safety and Health Administration (OSHA)  to develop a rule (an Emergency Temporary Standard (ETS)) that requires all private employers with 100+ employees to ensure that their employees are either fully vaccinated or undergo weekly testing. The ETS will also require employers with 100+ employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are “under the weather post-vaccination.” The ETS is expected to carry penalties of up to $14,000 per violation (i.e., employers who fail to comply with the vaccine mandate, weekly testing, or paid time off requirement). According to the White House, this rule is projected to impact over 80 million workers.

Unfortunately, at this time, employers and employees are left waiting on guidance from OSHA on the following questions: 

• When does the ETS go into effect?
• Who will be counted for the 100-employee threshold?
• Are remote employees covered?
• Must an employer collect proof of vaccination?
• Does this apply to employees with immunity due to a past COVID-19 infection?

In light of the news, employers can be proactive and take the following steps before the rule becomes effective: (1) encourage its employees to get vaccinated; (2) decide whether they will mandate the vaccine or undergo weekly testing and consider the costs associated with each; and (3) prepare for an influx of accommodation requests from its employees and review or implement a policy for handling the requests. 

Federal Workers and Federal Contractors: President Biden also signed Executive Orders requiring all Federal employees and contractors to be vaccinated, subject to certain exceptions as required by law, and removing the option to undergo regular testing. According to Press Secretary, Jen Psaki, Federal employees and contractors will have about 75 days to get fully vaccinated. The Safer Federal Workforce Task Force is expected to release additional guidance on September 16 and September 24 regarding the implementation of this requirement, the agencies covered by the orders, and any exceptions to the orders.

Health Care Workers: The Centers for Medicare & Medicaid Services (CMS), in collaboration with the Centers for Disease Control and Prevention (CDC), announced that it is using “its authority to establish vaccine requirements for all providers and suppliers that participate in Medicare and Medicaid programs.” In other words, vaccinations will now be required for workers in most health care settings that receive Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. According to the White House, this rule is projected to apply to approximately 50,000 providers and cover a majority of health care workers across the country.

Like the other mandates, guidance is forthcoming. CMS is expected to release an interim final rule sometime in October. Until then, employers will be left with the following unanswered questions: 

• Do the healthcare workers have the ability to opt out of the vaccine and instead undergo weekly testing like those employees working for employers with 100+ employees?
• When will the mandate go into effect (i.e., how much time will facilities have to be in compliance with the requirements)?
• Are remote employees covered?
• Are office employees covered?
• Must an employer collect proof of vaccination?

Over the next few weeks, we anticipate additional guidance from these agencies to address the above unanswered questions and concerns. We will continue to monitor the situation closely and provide updates as soon as possible. In the interim, if you have any questions regarding the effect the “Path Out of the Pandemic” has on your business, please reach out to an attorney in our Labor and Employment practice group.