Federal Vaccine Mandates for Private Sector Employers
September 10, 2021
On Thursday, September 9, 2021, President Biden signed several Executive Orders as part of a new, six-part plan (“Plan”) to address the current spike in COVID infections, hospitalizations, and deaths, largely attributed to unvaccinated individuals. The Plan revises and expands the current “vaccinate or test” requirements for federal employees and contractors and seeks to impose a mandate of vaccines or weekly testing on certain healthcare providers and “large” private sector employers. The Plan has no immediate effect and may not be implemented as quickly as the Biden Administration desires. Several business groups and some states have promised to file lawsuits to block any federal vaccine mandates. This document summarizes potential obligations of those categories of employers covered by the Plan.1
First and foremost, President Biden directed the U.S. Department of Labor, specifically OSHA, to require all businesses with 100 or more employees to ensure their workers are either vaccinated or tested once a week. If covered businesses do not comply, the government has promised to take “enforcement actions” which could include fines up to nearly $14,000 per violation. Although no details are currently available, the general expectation is that covered employers will be required to provide paid leave for employees to get the vaccine as well as to recover from any side effects and may even require that covered employers pay the cost of the vaccine and testing. The Biden Administration expects OSHA to issue an Emergency Temporary Standard (“ETS”) by the end of November to address the details of this mandate. Given OSHA’s history of issuing safety standards, including the tardy, pared-down ETS issued earlier this year in connection with a COVID-specific safety rule, it remains to be seen whether OSHA will meet the President’s expectations in this instance.
Second, federal contractors are currently required to have their employees vaccinated or tested on a frequent basis if those employees work on federal facilities. The new Executive Order appears to require mandatory vaccines for certain employees of federal contractors and removes the option to instead undergo weekly testing. The vaccine requirement will include exemptions for individuals with disabilities and those who refuse the vaccination on religious grounds. Businesses with federal contracts currently in place may not be impacted immediately by this requirement. Guidance for federal contractors from the Safer Federal Workforce Task Force should be published by the end of September 2021.
We will continue to monitor governmental action in response to President Biden’s announcement. In the interim, please contact your Elarbee Thompson attorney with any questions because this general summary is not intended to constitute legal advice for any specific facts or circumstances.