Biden’s Vaccine Mandate: What employers need to know.
As you’ve likely heard, President Biden has rolled out the most sweeping COVID-19 vaccine requirements yet —affecting an estimated 100 million American employees. The new action plan, which you can learn more about here, incorporates a vaccine mandate for all federal workers and contractors, along with a requirement that large companies (over 100 employees) must mandate vaccines or undergo weekly testing for employees. In addition, the new orders will require vaccination for health care workers that fall within Medicare and Medicaid participating hospital systems or clinics.
In his effort to aggressively combat the COVID-19 pandemic, President Biden's executive orders call upon the Department of Labor's Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS) that will ensure compliance amongst private-sector businesses that meet the policy's requirements. You can learn more about OSHA's role with the coronavirus here.
To understand this mandate more comprehensively, Starting Gate Solutions has developed a list of questions and responses:
Q: What are some immediate steps employers can take to address the new orders? Because this is the first federal vaccine mandate for private employers, there is still much to learn as things unfold in the coming weeks. Employers should first review the President's plan in-depth. Information can be found here. Companies should also work to develop a vaccine mandate policy, if they have not done so already. Policies should take into consideration religious, medical, and disability exemptions and provide clear alternatives and safety measures that comply with the federal guidelines. In addition, employers should focus heavily on education and communication plans—ensuring all employees are knowledgable and understanding of what the policies mean and how they will be enforced.
Q: When developing a vaccine mandate and testing policy, should employers seek legal advice first? To better understand the new mandate, Starting Gate Solutions has asked Joe Brown, Esq. of Hurwitz & Fine, P.C. to weigh in: “Yes, private-sector employers should seek legal advice in order to design a mandatory vaccine policy that provides for exemptions for people with qualified disabilities, as defined under the Americans with Disabilities Act, and for people with sincerely held religious beliefs, as defined under Title VII of The Civil Rights Act. Experienced legal counsel can also guide clients through practical and legal considerations that arise when analyzing whether a request accommodation rises to the level of an “undue hardship” for the employer.”
Q: What does an executive order mean for employers and what happens if or when it is violated?: Mr. Brown adds, “This remains to be seen. At the moment, details about the proposed ETS have not been revealed. It is unclear how the ETS will be worded and the timeline for implementation. The one thing we can guarantee is that there will be legal challenges to OSHA’s authority to issue the ETS, which could potentially delay implementation of the rule if a lower court were to issue a stay.” To learn more about potential fines, read here.
Q: What about employers under 100 employees? What can companies do about their unvaccinated team members? The new order is a game-changer for companies of any size. While many have already made the first steps towards vaccination, testing, and masking policies, this new mandate will help to “set the standard” moving forward, especially for those employers who have been hesitant to roll out such a strict mandate. Similar to President Biden's orders, companies can (and should) offer paid time off (PTO) to allow team members to get the vaccination and take recovery time post-vaccination, if needed. Other incentives can include convenient on-site vaccination clinics, reimbursement for travel, or other financial incentives (increased PTO time, gift cards, contributions to FSAs or HSAs, etc.). More guidance based on the EEOC's standards can be found here.
Starting Gate Solutions will continue to monitor and read up on the latest information and news as it unfolds and is dictated from the Office of the President. The health and well-being of your team is of utmost importance to me and will continue to be as we navigate the road ahead, together.