Employment Law Report
100 Million Employees to Face Vaccine Mandates
By: Mitzi Wyrick
In an effort to get more Americans vaccinated, President Biden announced a series of new rules for employers that will cover approximately 100 million workers across the country. The Occupational Safety and Health Administration (OSHA) is expected to issue a new Emergency Temporary Standard (ETS) covering employers with 100 or more employees. The ETS will require these employers to mandate that their workers be vaccinated or undergo weekly COVID testing. Employers will also be required to provide employees with paid time off to be vaccinated and to recover from the side effects of vaccination. Employers who do not comply with the requirement to mandate vaccination or to provide paid time off will face penalties of up to $14,000 per violation.
Additionally, most federal employees (except those employed by the legislative and judicial branches) will be required to be vaccinated against COVID-19. There is no ability to opt for weekly testing. Instead, the only exceptions will be for employees who need accommodations under the Americans with Disabilities Act (ADA) or for employees who object to vaccination for religious reasons.
Federal contractors who worked onsite at federal facilities were covered under a previous executive order that required vaccination or weekly COVID testing. President Biden announced plans to expand the requirement for vaccinations to all federal contractors, not just those who work onsite. And like the requirement for federal employees, the option for weekly testing will be removed. Employees of federal contractors will still be able to obtain an exemption under the ADA or for religious reasons.
Employees at health care facilities who receive federal funding under Medicare or Medicaid will also be required to be vaccinated, subject to exemptions for religious or medical reasons. While this requirement had previously been imposed on certain long-term care facilities, it has now been expanded to cover most health care settings, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The vaccination requirement will apply to nursing home staff as well as staff in hospitals and other settings regulated by the Centers for Medicare & Medicaid Services, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.
Similarly, teachers and staff in Head Start or Early Head Start facilities will be required to be vaccinated unless they need accommodations for religious or medical reasons. The Department of Health and Human Services (HHS) will initiate rulemaking to implement this policy for Head Start and Early Head Start programs.
Guidance on each of these efforts is expected to be issued shortly. The Wyatt Labor and Employment team will keep you advised of these developments.