On September 9, 2021, President Biden effectuated an executive order requiring a COVID-19 vaccination for nearly all executive branch federal employees and most, if not all, federal contractors (the “Contractor Mandate”). In addition, the same executive order, part of the Biden Administration’s “Path Out of the Pandemic” strategy (the entire plan can be found at https://www.whitehouse.gov/covidplan/) has asked for a federal workplace safety rule – from OSHA -- to require all employers with 100 or more employees to either (1) ensure their workers are vaccinated or (2) require unvaccinated employees to produce a weekly negative tests (“Employer Mandate”).
The Employer Mandate is arguably the most aggressive of the six-prong strategy announced by President Biden. This portion of the plan calls for OSHA to issue a rule requiring all private employers with more than 100 employees to implement a requirement that their employees either be vaccinated or produce a weekly negative test. This rule will take the form of an Emergency Temporary Standard, which allows OSHA to enact regulations it can enforce immediately if OSHA determines that a grave danger to worker safety is present. All employers with 100 or more employees covered by OSHA would be required to comply with this new rule, including office and professional environments. Exact details of the Employer Mandate, including the timeline for implementation and enforcement, if the 100-employee count will be by location or by company, and employee testing and the financial burden associated with it, is unknown at this time.
Given the current political climate generally, and surrounding COVID-19 specifically, it would be safe to assume that the Employer Mandate (and perhaps other parts of the “Path Out of the Pandemic” will face legal challenges by both states and private employers. As we await the rules and guidance related to this Employer Mandate, employers may want to start taking steps to plan for its ultimate rollout. Discussing issues such as whether simply to mandate the vaccine or allow for testing-in-lieu-of-the-vaccine, how to handle religious and medical accommodation requests and gathering and recoding test results and vaccine status would be an excellent first step. In addition, it would seem inevitable that many employers will have employees who refuse to comply. How to handle those situations and the staffing concerns which may accompany those situations can be discussed now.
For federal contractors and subcontractors, the Contractor Mandate replaces the federal employee COVID-19 safety protocols issued in July which required either vaccination or testing for federal employees and contractors. In short, federal contractors will be required to follow vaccine mandate requirements entered on or after October 15. Detailed requirements and guidance are to be released by September 24. This is expected to cover most, if not all federal contractors and their subcontractors due to the fact that each contract will be required to include a flow down clause including the COVID-19 vaccine requirement in all lower-tier subcontracts.
At this point, it is essential for all companies with federal contracts to begin planning for a Contractor Mandate vaccination rollout and the issues which may accompany that rollout – compensation for time traveling to and from and receiving the vaccine, paid sick leave for recovery from any vaccine side-effects (federal contractors must follow the federal paid sick leave requirements), accommodation issues related to medical and religious objections to the vaccine and dealing with requests from government agencies that only vaccinated workers will be allowed onsite.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.