Biden Administration Expands Workplace Vaccination Requirements for Federal and Private Employers

On September 9, 2021, President Biden introduced a COVID-19 Action Plan, which includes mandatory vaccinations for all federal employees, as well as many private employers. The President directed the Occupational Safety and Health Administration (OSHA) to develop a rule requiring all employers with 100 or more employees to require that their workers be vaccinated or undergo regular COVID-19 testing at least once a week. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. The ETS will require employers to give workers paid time off to get vaccinated and to recover from any side effects after inoculation. OSHA would have the authority to fine businesses that do not comply up to $14,000.00 per violation.

President Biden’s plan also included an executive order requiring all federal executive branch workers to be vaccinated as well as all employees of contractors that do business with the federal government.

When Do The New Requirements Go Into Effect?

The timing of the ETS and its effective date are unknown. OSHA’s previous ETS specifically aimed at employers in the health care sector may be instructive by looking at its roll-out from introduction to implementation. It took months that ETS to be posted on OSHA’s website (posted on June 10, 2021.) Any ETS must be published in the Federal Register and provide an effective date; the health care sector’s ETS was published in the Federal Register and became effective on June 21, 2021, and compliance with its requirements did not start until two weeks later. Based on these timelines, it will take weeks before the new ETS becomes effective.

The deadline for affected federal employees and contractors to comply with the vaccination mandate is, however, known. All federal employees, and employees of contractors that do business with the government, must receive the COVID-19 vaccine within 75 days of signing this Executive Order, which is November 23, 2021.

Who is Required to Comply with this Mandate?

President Biden’s latest mandate applies to all private employers with 100 or more employees, health care workers employed in facilities that receive funds from Medicare and Medicaid, federal government employees and employees of contractors who do business with the federal government, as well as educators who are a part of the federal Head Start programs. The requirements relating to federal government employees and contractors are more stringent under this new mandate as they do not allow for federal government employees or contractors to opt for regular COVID-19 testing instead of being vaccinated. Federal government employees and contractors must be vaccinated with extremely limited exceptions (e.g. for religious or medical contraindications to the vaccine). All affected employees and employers are expected to comply with this mandate by no later than November 23rd, 2021.

How to Comply with this Mandate?

In order to comply with President Biden’s latest mandate, federal government employees will be asked to attest to their vaccination status. Anyone who does not attest or is not vaccinated will be required to mask at all times, test one to two times per week, socially distance, and generally will not be allowed to travel for work. Additionally, the president signed two executive orders that, respectively, mandate vaccination for all executive branch employees and for some employees of some federal contractors. Requirements for federal contractors will be set by a Safer Federal Workforce Task Force, which has been ordered to issue its guidance by September 24, 2021.

For the private sector, President Biden's plan directs the Department of Labor’s Occupational Safety and Health Administration to develop an Emergency Temporary Standard that will require all employers with at least 100 employees to ensure their workforce is fully vaccinated or else subjected to weekly COVID-19 testing before coming into work. The ETS will also require covered employers to provide employees paid time off to get vaccinated and recover from side effects associated with the COVID-19 vaccine. The details and timeline of the ETS are unknown.

What Questions Remain Unanswered Regarding the ETS Requirements for Private Employers?

With only the basic outline of OSHA’s planned ETS available, many questions remain unanswered. Some include the following:

• How will the 100 employee threshold be calculated? -Will it be based on the number of employees in a corporate entity alone or will related entities be included in the number?

• What about exceptions for disabilities or sincerely held religious beliefs as to the vaccines and weekly testing?

• Who pays for any costs to get the vaccine or weekly testing? -Will OSHA’S ETS require testing to be implemented at no cost to employees?

• How much paid leave time will employers be required to provide for employees to be vaccinated and recover from any side effects? [In the ETS for employers in the health care sector, OSHA said “reasonable time.” In explanatory text to the ETS, OSHA said it would presume that if an employer makes available up to four hours of paid leave for each dose of the vaccine, as well as up to eight hours per dose for any side effects, the employer would be in compliance with the “reasonable time” requirement.]

• How will employers verify employees’ vaccination status and weekly testing results?

We will continue to monitor the situation closely and update our clients as the answers to these important questions become available.

Recommendation

While we await details from OSHA, your business may want to begin outlining its protocol of asking for vaccination status and implementing regular COVID-19 testing. The experienced employment attorneys at Thakur Law Firm, APC are continuing to monitor ongoing developments regarding these new federal requirements and how our business clients may best navigate them. If you have any questions or need clarification regarding any state, federal, or local laws/regulations relating to COVID-19, do not hesitate to reach out to Thakur Law Firm where we stand ready to assist you with all of your COVID-19 related questions.