President Biden’s Vaccine Mandate for Private Employers

Posted September 10, 2021 Coronavirus, Compliance Alert ,
Vaccine booster

Compliance Alert: More to come with President Biden’s announcement regarding mandatory vaccinations for government contractors and private employers.

On September 9, 2021, President Biden announced his renewed stance to contain the spread of COVID-19.  The primary vehicle for President Biden’s strategy is a proposed, new vaccine mandate for many employers and their employees.

The mechanics of the vaccine mandate will be for the DOL and OSHA to issue an Emergency Temporary Standard (ETS).  This standard will require government contractors and all employers with 100 or more employees to have their employees, possibly subject to some future exemptions, be fully vaccinated.  A possible alternative would be for employers to require their employees to undergo weekly testing.  These rules, once effective, will impact millions of workers.

The specific language of the future ETS is still uncertain.  Provisions such as the possible exemptions, paid or excused/job-protected time off for the vaccination and recovery, and other leave for family issues or side effects are likely to be addressed.  To reach this point, OSHA, through the ETS, does not need to conduct a public comment period, but there will be an internal review of the proposed regulations.  As a result, these uncertainties may be resolved within a thirty (30) day period but could be longer.

Federal executive branch workers and employees of contractors that do business with the federal government will also be covered under a vaccine mandate, as will employees at most health care settings that receive Medicare or Medicaid reimbursement.  At this time, it does not appear that the mandate for federal workers, which are covered by President Biden’s separate executive order, will contain a weekly testing alternative.

OSHA’s last ETS was the requirement for healthcare employers to provide all their employees with adequate PPE for COVID-19 risks.  That emergency rule took 6 months to formulate and become effective.  The ETS for President Biden’s latest vaccination initiative will likely be faster, subject to possible legal challenges.

President Biden’s mandate may push more employers to decide on their own volition to require their employees to become fully vaccinated.  This will likely be a case-by-case basis, depending on industry and employer-employee relations.

There will be much more to come on this announcement and the forthcoming ETS and rule-making process.  Please be advised there will be additional alerts to come on these topics.

Please note that the information contained in this posting is designed to provide general awareness in regard to the subject matter covered. It is not provided as legal, medical, or tax advice, nor is it intended to address all concerns in your workplace or for public health. No representation is made as to the sufficiency for your specific company’s needs. This post should be reviewed by your legal counsel or tax consultant before use.