Key points about the new vaccine mandate:
- Biden’s vaccine mandate required private employers with 100 or more employees to ensure that their employees were vaccinated or showed proof of negative COVID-19 test results each week.
- The Supreme Court recently blocked this mandate, which means there is currently no Federal vaccine mandate.
- However, you still need to comply with all other Federal, state, and local requirements.
On September 9, 2021, President Biden announced a new plan to further reduce the spread of COVID-19. Most notably, his plan required private employers with 100 or more employees to ensure that their employees were vaccinated or underwent weekly COVID-19 testing. This plan would have impacted more than 80 million workers and has drawn a wide range of support and criticism.
After various rounds of back and forth, the Supreme Court blocked the mandate on January 13, 2022. It seems unlikely that a sweeping Federal regulation will occur, but some uncertainty remains.
What is Biden’s vaccine mandate?
The original vaccine mandate required all employers with 100 or more employees to ensure their workforce was fully vaccinated by January 4, 2022, or require any workers who remained unvaccinated to produce a negative COVID-19 test result on at least a weekly basis before coming to work. Beginning December 5, 2021, unvaccinated employees were also required to wear a mask or face covering while on the job.
A later update extended the original deadlines. It gave employers until February 9, 2022 to comply with the vaccine mandate’s testing requirements and until January 10, 2022 to comply with the other provisions.
Qualifying employers also needed to provide paid time off for employees to get vaccinated and/or recover from any vaccine-related side effects. For more information about the official requirements, check out OSHA’s COVID-19 Vaccination and Testing ETS Fact Sheet.
What’s new?
Biden’s vaccine mandate took effect on November 5, 2021. The following day, it was put on hold by a Federal Court of Appeals. On December 17, the Federal Court of Appeals reinstated the vaccine mandate. Then, on January 13, 2022, the Supreme Court blocked the mandate. This means that you are not Federally required to comply with the vaccine mandate at this time. You still need to comply with all other Federal, state, and local requirements.
Some states have OSHA State Plans. These are OSHA-approved workplace safety and health programs operated by individual states or U.S. territories. If your state has an OSHA State Plan, there may be state-specific rules that you still need to comply with. You may also choose to create your own vaccine requirements for your workforce.
While some uncertainty remains, it does not seem likely that the sweeping Federal vaccine mandate will be reinstated. However, we’ll leave the guidance below to help you comply with any other requirements and/or manage vaccine requirements of your own.
Who will pay for the cost of testing?
Under the Federal mandate, employers were not required to pay for, or provide testing to, employees who chose not to receive the vaccine. (Health plans and insurance carriers are now required to cover the cost of at-home over-the-counter COVID-19 tests.) However, you may need to take note of collective bargaining agreements or other circumstances that could require otherwise if you face state or local requirements.
Who will enforce the vaccine mandate?
The Department of Labor’s Occupational Safety and Health Administration (OSHA) was set to issue an emergency temporary standard to enforce the vaccine mandate. Now that the Supreme Court has blocked the mandate, many vaccine decisions will be enforced by state entities and employers.
How can employers stay compliant with the vaccine mandate? How can they prepare?
While there is currently no Federal vaccine mandate you need to comply with, some best practices can help you manage state requirements or employment-mandated rules:
Please note that this information is subject to change.
Reconsider vaccines
Implementing any new policy can be challenging and a vaccine-related one is certainly no exception. But whether you’re concerned about employee reactions or something else, you may want to reconsider a vaccine policy if you don’t have one already. Depending on state requirements, more vaccinated employees will mean less compliance risks. Greater vaccination rates can also reduce your workload – you won’t have to check an overwhelming amount of COVID-19 test results each week.
Create a vaccine policy
Next, you may want to draft a vaccine policy for your business. Consider:
Mandatory vaccination versus weekly testing
To start, decide if your business will require vaccination or allow weekly testing. How will you track vaccination? Do you have someone who will be able to check employee test results each week? Depending on your bandwidth, creating a mandatory vaccine policy may be easier for your business.
You’re not required to cover the cost of weekly COVID-19 testing for your employees, but you may want to consider your budgetary constraints regardless. Collective bargaining agreements and other factors may require you to bear some financial responsibility. In cases such as this, mandatory vaccination may be more reasonable for your business since vaccines are free.
Exemptions
Once you decide on your strategy, make sure your vaccine policy includes the proper exemptions for people with qualified medical conditions, disabilities, and sincerely held religious beliefs. Consult your legal advisor for additional help.
Anticipate accommodation requests
As noted above, many vaccine requirements do not override certain exemptions for people with qualified medical conditions, disabilities as defined under the Americans with Disabilities Act, and sincerely held religious beliefs as defined under Title VII of The Civil Rights Act.
To confirm that an employee has a qualifying medical reason for exemption, you’re allowed to request verification from them. However, be sure to keep all medical information confidential. You should also try to stay consistent when requesting verification.
When it comes to religious beliefs, many religious objections are protected. You should only seek additional verification if you have a specific reason to doubt that an employee’s objection is religion-based.
Prepare for employee concerns
Some employees will be concerned about vaccine requirements. Be sure to explain the reasoning behind your policy. Let employees know that, as a business, you need to comply with state or local requirements (if applicable). Show them that your policy is also meant to keep them and their workplace safe.
When employees express their concerns, listen to them carefully. You may be able to work out a reasonable accommodation, like weekly testing instead of vaccination. Other employees may be willing to get the vaccine, but still feel anxious about new policies and workplace changes. You can support them with mental health programs and other initiatives.
What are the penalties for non-compliance?
Under the original mandate, employers who didn’t comply with the vaccine mandate or provide the required paid time off faced fines of up to $14,000 per violation.
What else does Biden’s latest COVID-19 plan include?
President Biden’s plan included additional requirements for Federal workers, Federal contractors, and healthcare workers:
- All Federal workers must be fully vaccinated. This includes employees of contractors that do business with the Federal government.
- Likewise, healthcare workers at participating Medicare and Medicaid settings must be fully vaccinated. These healthcare settings include, but are not limited to, hospitals, dialysis facilities, and home health agencies.
- Lastly, large entertainment venues should require their patrons to show proof of vaccination or testing for entry.
Changing legislation has made compliance challenging for even the most experienced businesses. If you create a vaccine policy, consider adding it to your company handbook. Our blog and checklist can help you keep track of all of the COVID-19 policy updates you may need to make to stay compliant.
Legal Disclaimer: The information contained in this guide is for general informational purposes only. Under no circumstance shall we have any liability to you for any loss or damage of any kind incurred as a result of the use of the template or reliance on any information provided in this template. Your reliance on any information is solely at your own risk.
