In the midst of concern that the U.S. vaccination rates are too low and employers are grappling with whether or not to implement vaccination mandates for their employees, President Biden has unveiled an action plan to combat the onslaught of the COVID-19 surge driven by the new variants of the virus. It requires federal workers, contractors, certain health care workers, and employees at private companies with 100 or more employees to be vaccinated or, if not vaccinated, tested weekly. While the plan also lays out a foundation for a booster shot campaign and makes recommendations for schools, the following is most important for employers at the current time:

  • All federal workers and contractors, with limited exceptions, must be fully vaccinated or submit -to weekly COVID-19 testing.
  • Healthcare workers in facilities that accept Medicaid and Medicare must be vaccinated.
  • Certain early childhood education and federal education programs must be vaccinated.

Private employers with 100 or more employees must also require vaccinations or weekly testing. Employers must provide paid time off for employees who decide to get vaccinated or need time off to recover if experiencing post-vaccination symptoms. The following are questions that people are already posing to which we don’t yet have answers:

  • How will the 100 threshold be counted? Will it be by location or include all locations? Will it include only W-2 employees or also contingent workers?
  • Will employers be required to pay employees who do not get vaccinated for the time it will take to get tested weekly?
  • Will employers have to pay for the cost of the weekly testing?
  • Will the vaccination and testing mandates apply to staff that work 100% remote?

On September 9, 2021 Biden issued an Executive Order putting in place some of these new requirements. With regard to the mandate for companies with more than 100 employees, Biden has directed OSHA to draft a new Emergency Temporary Standard. We believe we will see this from OSHA in the next couple of weeks. OSHA will apparently have the ability to fine businesses who don’t comply $14,000 per violation.

While many are in strong support of the President’s plan, there is and will be opposition. Several Republican governors and some union leaders have voiced outrage and are threatening lawsuits. As of now, the courts have consistently been ruling in favor of employer mandates. Some of the recent decisions have relied on a U.S. Supreme Court case from 1905 in which the court upheld states’ authority to enforce vaccination mandates. In that decision the court expressed the view that individual liberty is not absolute and is subject to the power of the state.

The Federal EEOC (Equal Employment Opportunity Commission) has opined earlier this year that vaccine mandates do not infringe on people’s privacy of medical information rights, so long as an employer engages in the interactive process and provides reasonable accommodation to workers who are not able to get vaccinated due to medical reasons or based on sincerely held religious beliefs.

While we’re confident that there will be on-going litigation, for now, employers should be advised to comply with the President’s and OSHA’s new directives subject to advice from their legal counsel.

At Vantaggio HR, we’re here to help if you have questions, need help drafting vaccination policies and documents, or need assistance with the accommodation process. 

A copy of the Executive Order can be found here:  https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-employees/

A link to the President’s full plan can be found here:  President Biden’s COVID-19 Plan | The White House

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