President Biden’s “Vaccine Mandate”: Important Information for Employers

Earlier this month President Biden issued two Executive Orders along with guidance to the Department of Labor’s Occupational Health and Safety Administration (OSHA) in support of his 6-point Path Out of the Pandemic COVID-19 Action Plan. This Plan aims to further prevent the spread of COVID-19 as Americans continue to live through the Pandemic. The following portions of the Plan are of particular significance to workers and employees:

  1. OSHA is to develop an Emergency Temporary Standard (ETS) obligating all companies with 100 or more employees to require all of their employees to either receive the COVID-19 vaccine or be subjected to weekly testing. These employers must also provide their employees with paid time off both to receive the vaccine and to recover from any associated side effects.
  2. All Executive Branch employees will be required to be vaccinated with limited exception. Importantly, federal employees will not have the ability to opt out by subjecting themselves to weekly testing.
  3. All federal contracts are required to incorporate a provision requiring companies to comply with forthcoming protocols from the Safer Federal Workplace Task Force. Stay tuned… as Guidance for federal contractors is required to be issued by the Task Force by September 24, 2021.
  4. Most health care facilities that receive Medicare or Medicaid reimbursement must require employees to be vaccinated.

Exemptions remain for employees who are unable to receive a COVID-19 vaccine owing to a disability or sincerely held religious belief.

It remains uncertain when, exactly, the employer mandate will take effect. Also, OSHA has yet to publish guidance with respect to how total number of employees will be counted (i.e., by worksite vs. company-wide) or who will bear the cost of weekly testing, vaccination verification protocols, and any requirements for storing vaccination record information.

Although further guidance, which we will continue to update, is almost certainly forthcoming, employers who expect to be impacted by this Plan should start preparing relevant policies and procedures now. Please contact a member of the Shulman Rogers Employment and Labor group, or the Shulman Rogers attorney with whom you regularly work, with any questions or if you would like further guidance on important implementation questions such as how to handle employees seeking exemptions or how to review and retain test results in a manner that complies with federal and state confidentiality and privacy laws.

Meredith S. Campbell
Chair Employment and Labor Group
Co-Chair Corporate Investigations, Governance & Risk Management

Email mcampbell@shulmanrogers.com T(301)255-0550

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