September 13, 2021
Late last week President Biden set forth his multipronged approach to combat the spread of COVID-19. This new approach will impact thousands of companies and almost 100 million U.S. federal and public sector workers. As part of the plan, new vaccination mandates will be put in place, some with weekly opt-out testing options.
What you need to know
Mandatory vaccination, no testing option.
Federal employees and contractors that work with the government will no longer have the option of regular COVID-19 testing and will be required to be vaccinated.
In addition, all healthcare facilities that receive federal Medicaid or Medicare funding are mandated to have their workforces vaccinated with no weekly testing option. Previously the Biden administration had mandated vaccination for employees at U.S. nursing homes receiving federal funding. This new requirement significantly expands his prior healthcare mandate, with the new rules covering over 50,000 hospitals and healthcare facilities with over 17 million workers.
Optional vaccination with weekly testing
The President stopped short of implementing a broad sweeping vaccination mandate for most Americans as he gave many the option of submitting to weekly COVID tests in lieu of getting vaccinated. This new requirement will cover approximately 80 million workers. To fully implement this part of his plan, the President tasked OSHA to establish a new emergency temporary standard (“ETS”) for companies with 100 or more employees to require vaccines for their workers or have them receive weekly COVID-19 tests. OSHA has authority to issue an ETS if it is shown that employees are in danger and the proposed standard/rule can mitigate the danger.
Employers subject to the ETS will be required to provide paid time off for employees to get vaccinate and recuperate from any serious side effects they experience from the vaccination.
It is expected the ETS will be implemented in the next few weeks.
Consequences for violating the rules and Presidential appeal
Workers who refuse to comply with the new mandates may face termination by their employers, while companies subject to the new mandates could face up to $13,600 in penalties per violation.
During his briefing, the President questioned why so many Americans still have not received their shots even after approval by the Food and Drug Administration. Clearly, the Administration had hoped to see a surge in vaccination numbers following recent FDA full approval (rather than the prior emergency approval) of some of the vaccines. Unfortunately, it did not happen, which in part necessitated the mandates. According to the latest CDC data, about 75% of U.S. adults have received one vaccination, while just 54% of all Americans are fully vaccinated.
The President went on to implore Americans to get vaccinated, “We’ve been patient, but our patience is wearing thin” and he appealed to large entertainment venues to require vaccination or proof of a negative test for entry. We believe this appeal by the President to individuals and companies is part of the President’s strategy to get more Americans vaccinated without expanding the scope of federal vaccine mandates. And that these pressures will trickle down to smaller businesses not currently under governmental mandate.
It is important for businesses to keep in mind the new regulations being imposed by the federal government are minimum requirements. Each individual company can put more stringent policies in place at their own choosing. Additional options include not providing workers the weekly testing option, but mandating universal vaccinations.
From the President’s perspective, “This is not about freedom or personal choice. It’s about protecting yourself and those around you.”
Additional pressure is being placed on employers across the country to ensure a safe and vaccinated workforce. Previously, public sentiment saw vaccination mandates as overreaching and a violation of personal rights. However, now as the pandemic approaches its second anniversary, opinions are shifting. Now is the time to assess how your company will deal with balancing concerns for employees’ “freedoms and personal choice” with business needs and creating a safe environment for your entire workforce.
Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
