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Legal Updates

Biden Administration Announces New COVID-19 Vaccine Mandates For Large Employers, Healthcare Facilities, And Federal Contractors

Earlier this month, President Biden announced a series of new measures to combat the resurgent COVID-19 pandemic, including new regulations and an Executive Order that, together, will mandate vaccinations for employees of organizations with at least 100 employees, healthcare facilities, and federal contractors.

While many questions remain to be answered, the following is a summary of what we currently know about each of these new measures.

OSHA Mandate For Employers With 100 Or More Employees

First, the President announced that the federal Occupational Safety and Health Administration (“OSHA”) will soon issue a rule requiring that all private employers with 100 or more employees ensure that employees are vaccinated against COVID -19, or provide negative test results on at least a weekly basis. The rule will be implemented as an emergency temporary standard, allowing OSHA to forego the usual, lengthy rule-making process.

As part of the new rule, OSHA will require covered employers to provide employees with paid time off for the time it takes to get vaccinated and/or to recover from any illness caused by the vaccination.

Many important issues relating to the new mandate remain to be addressed, including:

  • The status of medical and religious exemptions from the vaccination requirement. While it seems likely that such exemptions will be permitted (with weekly testing the likely alternative), the President’s announcement did not cover that point.
  • What documentation requirements will apply to employers.
  • Whether employees who work fully remotely will be subject to the mandate.
  • Whether employees who choose to be tested in lieu of vaccination can be required to cover the costs of the testing.
  • Whether employers will be able to apply for a tax credit or other reimbursement for paid leave provided to employees.

In addition, the rule itself may face legal challenges, given the Administration’s decision to forego the usual regulatory review and public comment process.

CMS Mandate For Healthcare Employers

President Biden also announced that the federal Centers for Medicare and Medicaid Services (“CMS”) is formulating a rule requiring all healthcare facilities that participate in the Medicare and Medicaid programs to adopt mandatory vaccination policies for employees, including workers who are not involved in direct patient or resident care. Previously, CMS had instituted such a requirement for nursing home facilities specifically.

CMS is expected to issue an interim final rule in the coming weeks, with a comment period to follow.

Unlike the OSHA rule for larger employers, it does not appear that weekly testing will be permitted as an alternative to vaccination. Presumably, legitimate religious or medical objections will be considered, though healthcare employers may be able to make a good case that accommodating such objections, other than through unpaid leave, is not feasible, at least for employees who have direct contact with patients or residents.

Executive Order Regarding Federal Contractors

Finally, President Biden has signed an Executive Order requiring that federal contractors implement a mandatory vaccination policy for their employees. This new measure applies to all companies entering into contracts with the federal government that start on or after October 15, 2021.

At present, it is unclear whether regular testing of employees will be permitted as an alternative to vaccination. A designated federal task force is expected to provide further guidance in the near future, which may clarify this issue.

As with the other two measures announced by the President, exemptions for legitimate medical and religious reasons are expected to be available.

Recommendations For Employers

Despite the important questions left open by these announcements, there are steps employers should consider taking now, while awaiting further guidance.

First, employers need not wait for these new mandates to go into effect before instituting mandatory vaccination policies. Subject to possible medical and religious exemptions, as well as other applicable legal requirements (such as bargaining with a union representing employees), employers remain free to choose to implement vaccination requirements for their workforces.

Employers that have not previously required vaccinations but will be covered by one or more of the new mandates may want to begin drafting policy statements now, understanding that they will likely need to be revised as further guidance is issued.

Finally, employers should be alert for the expected OSHA regulations and CMS final rule, as well as further guidance on the Executive Order.

Schwartz Hannum is closely monitoring these developments, and we will provide further updates as we are able to do so.