September 10, 2021

Biden administration's vaccine mandate raises questions for employers

Client Alert
Mark W. Peters

On September 9, President Joe Biden announced aggressive plans to combat the COVID-19 pandemic, taking the fight directly to the workplace. 

While employers have struggled to balance a host of legitimate business, ethical, economic and other interests when determining whether to implement a mandatory vaccination program, President Biden provided some “cover” to employers with more than 100 employees by ordering mandatory vaccination or, as an alternative, weekly testing.  

Additionally, OSHA is developing a rule applicable to those large employers to provide paid time off for the time it takes for workers to get vaccinated or to recover if they become ill post-vaccination.  Though the full scope of the to-be-issued Emergency Temporary Standard from the Occupational Safety and Health Administration (“OSHA”) is not yet known, it is predicted to impact more than 80 million workers.  

No doubt there are still many questions to be answered -- including whether employers will be required to provide medical and/or religious accommodations (presumably so though some state legislation mandating vaccination has explicitly rejected such an accommodation requirement), whether the vaccination versus testing “choice” is the employer’s or the employee’s (presumably the employer’s), whether OSHA will use a ”joint” or “integrated” employer test to count employees for purposes of determining coverage (presumably yes, as the DOL did in enacting the FFCRA), and whether the government is going to provide financial assistance to pay for the additional PTO (possibly through tax breaks or otherwise) -- the new standard presents additional unique opportunities and challenges for business owners and human resources professionals alike. 

Following up on his announcement in early Summer regarding mandatory vaccination for healthcare workers in nursing homes and OSHA’s promulgation of the corresponding ETS in June, President Biden further noted that Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement.  This expanded mandatory vaccination rule in the healthcare workplace will apply to staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. According to the Administration, the requirements will apply to approximately 50,000 providers and create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.

As the new ETS is issued, we will continue to provide updates. 

In the meantime, if you have any questions about vaccination programs or policies and accommodation requests, you can contact Waller’s employment group.

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