On September 9, 2021, President Biden announced major changes in the way the federal government is combating the COVID-19 pandemic as part of the Path Out of the Pandemic action plan. The plan includes the following measures:
- The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a temporary emergency rule to require employers with 100 or more employees to ensure their workforces are fully vaccinated or show a negative test at least once a week;
- OSHA will also require employers with 100 or more employees to give unvaccinated workers paid time off to get vaccinated;
- He had signed an Executive Order requiring federal contractors to ensure that their employees be vaccinated; and
- The Centers for Medicare and Medicaid Services (CMS) will require workers in most health care settings that receive Medicare or Medicaid reimbursement to be vaccinated against COVID-19.
The mandates will be subject to exemptions for individuals who cannot receive a COVID-19 vaccine due to a disability or sincerely held religious belief.
While it is unclear when the employer mandate will go into effect, OSHA is charged with enforcing any temporary emergency rule and OSHA’s penalty power includes fines of up to $14,000 per violation. Open questions include which employees the mandate applies to, who will pay for weekly testing and how vaccination records are to be stored. The relevant administrative agencies must work through the statutory authority that they have been given by Congress and craft a rule within that authority and can, at least arguably, withstand scrutiny by a court. The above measures are expected to be subject to future legal challenge.
Mandating Large Employers to Require Vaccination
Until the temporary rule is issued, the legal landscape for employers large and small has not changed. While employers that do not want to mandate vaccinations and/or testing may still legally not do so (for now) unless they are already subject to state-imposed vaccine/testing mandates like those impacting the healthcare industry in some states, those employers that have been waiting to issue such mandates now have more reason to move forward with such plans.
Given the weekly testing requirement for employees who remain unvaccinated, it is expected that OSHA’s forthcoming temporary standard will address who is responsible for paying the cost of that testing, recognizing that health insurers may not be willing to cover the costs of testing that is not ordered by a healthcare professional.
Employers that wish to move forward with vaccine/testing mandates (subject to reasonable accommodations for disability or religious issues) can do so with more confidence. Employers outside the federal contractor supply chain that do not wish to mandate vaccinations can, for now, take a wait-and-see approach.