With about 35% of working-age Americans not fully vaccinated, health concerns are growing within the workforce amid the spread of the Delta variant of COVID-19. In a sweeping attempt to contain this latest surge and get workers back into the office, President Joe Biden recently announced a vaccine mandate for employers of large companies, as well as for federal workers and contractors.
Given the unprecedented nature of this employer vaccine mandate, we consulted Keith Wilkes, a labor and employment shareholder at the national law firm Hall Estill, who has been fielding calls from employers about the recent announcement, to understand the legal nuances for large companies and their workers. Here’s what employers need to know.
What does the COVID-19 employer vaccine mandate entail?
On September 9, 2021, Biden announced that the Occupational Safety and Health Administration (OSHA) will create a rule for private sector businesses with 100 or more employees to require all workers to be vaccinated or submit to weekly testing. This includes employees who have already contracted the virus as well as people working from home. OSHA will also require these employers to offer paid time off for vaccination or to recover if they experience symptoms post-vaccination.
“The emergency OSHA rule, which will require all private sector employers with at least 100 employees to mandate vaccinations in their workforce or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis, is expected to impact over 80 million private sector workers,” Wilkes says.
Additionally, all federal workers and contractors must be fully vaccinated, with no option for weekly testing. Biden also said 300,000 educators in federal Head Start programs must be vaccinated and called on governors to require vaccinations for teachers and staff. The vaccine mandate was also expanded to about 50,000 hospitals, home care facilities, and dialysis centers, requiring the 17 million health care workers at those facilities receiving funds from Medicare and Medicaid to be fully vaccinated.
Who is excluded from the employer vaccine mandate?
Businesses with fewer than 100 employees are excluded from the vaccine mandate. (If you’re a small business owner, see below for guidelines on legally mandating COVID-19 vaccines at your company.)
Additionally, certain workers who are employed at companies where the vaccine is mandated may also seek exemption. “The employer vaccine mandate allows for an employee to seek an exemption and reasonable accommodation from their employers based upon a sincerely held religious belief, under Title VII of the Civil Rights Act of 1964, as amended, or based upon a disability under the Americans with Disabilities Act (ADA),” Wilkes says.
Employers must offer reasonable accommodations
Before an employer fires an employee for not getting a vaccine, the employer needs to ensure they are not violating ADA or Title VII or possibly any of their state laws that require providing reasonable accommodations based on medical reasons or religious beliefs, like allowing remote work.
Additionally, Wilkes says, “Some low-cost solutions or accommodations may be to reduce contact between the employee and others by designating one-way aisles, using plexiglass barriers, or other means to ensure minimum distances between customers and coworkers. Employers may also consider modifying a work schedule or shift assignment to allow the exempt person to safely perform the essential functions of their job while reducing exposure to others in the workplace.”
Implementing the employer vaccine mandate
Federal workers and contractors will have about 75 days to become fully vaccinated. Employees are considered fully vaccinated two weeks or more after they have received a single dose of the Johnson & Johnson vaccine or two doses of the Pfizer or Moderna vaccine.
Meanwhile, large companies will likely want to get the ball rolling on getting shots in employees’ arms. “OSHA, which falls under the U.S. Department of Labor, will issue an Emergency Temporary Standard (ETS) to implement the new rule,” Wilkes says. “Although the timing of when the ETS requirement will go into effect is not clear, it will likely not be a long wait.”
The cost of noncompliance
The penalty for noncompliance is substantial and can become even more severe if left unchecked. “A ‘willful or repeated violation’ can result in a minimum penalty of just under $10,000, while the maximum penalty for a willful or repeated violation can be as high as $136,532 per violation,” Wilkes says. “How OSHA is going to view and apply a violation remains unknown at this time. An ongoing willful or repeated violation, however, is not going to result in only a one-time penalty if the employer does not comply.”
The vaccine mandate may impact hiring
While many large white-collar employers, including Google, Facebook, and Johnson & Johnson, have already implemented vaccine mandates, this new rule will take the pressure off companies that have encouraged, but not required vaccination. It can also help ensure that vaccinated employees and candidates feel safe in their work environment.
According to the Boston Globe, the new federal mandate will likely have the most impact on massive retailers and other low-wage employers that have not yet required vaccinations for all of their workers. However, with many retailers, restaurants, and even transportation companies struggling to find and keep workers, some fear they could lose valuable workers or won’t be able to find new ones amid the ongoing labor shortages and the Great Resignation. A recent Monster poll conducted a few weeks before Biden’s announcement found that a resounding 79% of workers said they do not want their employer to mandate vaccines. Monster will be monitoring how the new vaccine mandate may impact hiring and retention in the months ahead.
Stay tuned: additional vaccines mandates may be coming
The employer vaccine mandate is part of Biden’s six-part strategy that he will continue to work to implement in the months ahead. In her daily briefing, White House Press Secretary Jen Psaki said Biden will be “building on the steps that we’ve already announced, the steps we’ve taken over the last few months, requiring more vaccinations, boosting important testing measures and more.”
Small business owners have a right to mandate vaccines
As a general rule, any employer can require employees to get vaccinated—not just those that fall under Biden’s vaccine mandate. Small businesses, for example, will want to take certain precautions if choosing to require employee vaccination. Employees can legally object for several reasons, including medical reasons, religious objections, or in some states for philosophical reasons.
To help employers understand their rights and their responsibilities, The Equal Employment Opportunity Commission issued new guidance on employers’ federal rights during the pandemic, suggesting employers have a right to create a policy that mandates vaccines. However, if an employer mandates vaccines, it must allow exceptions for an employee’s sincerely held religious belief or for an employee’s health issue that make it dangerous or not medically recommended for an employee to get the vaccine.
Getting America back to work
Navigating work and hiring post-COVID-19 will be an ongoing challenge for 2021. For more insights like this that can help you manage this new way of working in 2021 and beyond, download our Fall 2021 Hiring Report.