Biden to companies with 100+ employees: Mandate vaccines, or test weekly, or else!!!

Yesterday, President Biden announced that all businesses with 100+ employees will soon have to ensure that their workers are vaccinated or tested weekly. I’ve got details below and a Zoom planned for Friday, September 17, 2021, at Noon ET to get into more detail. The Zoom is free, and you can sign up here.

For now, here’s what your business needs to know.

Mandatory vaccinations or weekly testing for private employers with 100+ employees.

Per the White House:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

Healthcare workers must get vaccinated if they haven’t done so already.

To the extent that a healthcare entity hasn’t already mandated vaccinations or been forced to do so by a state or locality, the federal government is stepping in:

The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as 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. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. Some facilities and states have begun to adopt hospital staff or health care sector vaccination mandates. This action will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.

Federal workers and contractors must get vaccinated or test weekly.

Back in July, President Biden announced the federal workers would have to get vaccinated or test regularly. That’s no longer the case:

Building on the President’s announcement in July to strengthen safety requirements for unvaccinated federal workers, the President has signed an Executive Order to take those actions a step further and require all federal executive branch workers to be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government. As part of this effort, the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health will complete implementation of their previously announced vaccination requirements that cover 2.5 million people.

You can review the Executive Orders here (federal employees) and here (federal contractors)

You may have some questions.

I can anticipate one of them. Since this is a work requirement, must employers pay non-exempt employees for the time spent getting vaccinated? The White House anticipated this as well:

To continue efforts to ensure that no worker loses a dollar of pay because they get vaccinated, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS.

What’s the penalty for violating the OSHA rule? Up to $14000 per violation, I’ve read.

Will employers receive a corresponding FFCRA-style tax credit? 🤷‍♂️

What about the time spent getting weekly COVID tests? 🤷‍♂️ (Your mileage may vary under federal, state, or local law).

Does the mandate include booster shots? 🤷‍♂️

Is this even legal?

That’s the big question. Now, I must confess that I am neither an administrative nor constitutional law savant. While there is precedent for a state passing a law to require vaccinations for its residents, ordering private businesses to mandate vaccinations by Executive Order (or the like) would appear to exceed President Biden’s powers under Article II of the Constitution. At the very least, it should be a congressional bill that, if passed, the President can then sign into law.

Will there be lawsuits? Guaranteed!

Do you have additional questions? Email them to me, and I’ll try to incorporate them into next week’s Zoom session.