RELATED 1/13/22 UPDATE: Breaking News: Federal Vaccine Mandate Blocked
President Biden garnered mixed reactions with his September 9, 2021 announcement of an Executive Order mandating employers with 100+ employees to require the COVID-19 vaccine or weekly testing. The President’s announcement is part of the administration’s COVID-19 Action Plan and is coming on the heels of a surge in COVID-19 cases and hospitalizations due to the virus’s highly contagious Delta variant.
While many believe that the mandate is both necessary and legal due to public health and safety concerns, others are pushing back on the constitutionality of its provisions. In the coming weeks, court challenges are expected both from state governors and private employers who believe the mandate is an unconstitutional use of federal powers.
While there are more questions than answers, we expect more information to come in the days and weeks ahead. Below is a look at what we know today – highlights of the Executive Order that will likely affect you, your organization, and your employees. You can also tune in to the latest podcast episode for more information from NFP’s Chief Compliance Officer and SVP, Associate General Counsel Suzanne Spradley.
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Private Employers with 100+ Employees
The President’s directive requires the Occupational Health and Safety Administration (OSHA) to develop an Emergency Temporary Standard (ETS) mandating all employers with 100 or more employees to require employees to be fully vaccinated or produce proof of a negative COVID test on a weekly basis. Notably, beyond the administration’s statement that the ETS will be issued “in the coming weeks,” there is no timeline for OSHA to develop this rule, and no indication of when it will go into effect. Employers will also be required to provide paid time off for employees to get the vaccine or to recover from vaccine side effects.
Federal employees and employees of federal contractors must be vaccinated and will not have the option to provide a weekly negative test as an alternative. This provision of the President’s directive will be enforced by the Departments of Defense, Veterans Affairs and the National Institute of Health.
In the case of healthcare facilities that receive Medicare or Medicaid reimbursement, the Centers for Medicare and Medicaid Services (CMS) is directed to issue an interim rule that requires healthcare workers to be vaccinated. CMS has indicated the rule will be issued in October.
Next Steps for Employers
Until OSHA issues the ETS providing details about the nuts and bolts of this mandate, employers are left with little direction on the legalities of the rule. Open questions include when the rule will be effective, how testing will be paid, how much paid leave is required, and how noncompliance penalties will be calculated.
That said, we recommend planning now so that you’re ready when the mandate becomes effective. Steps to take include:
- Begin training managers and communicating with your employees as soon as possible, so that they understand what to expect. A strong communication strategy is critical to managing employee fears and building a positive story around the benefit of vaccines.
- Determine if you’ll bring a vaccine clinic and/or COVID testing on site for your employees or whether you’ll require employees to take these steps on their own.
- Develop a process for how you’ll enforce the mandate – what proof will be required, how you will collect it, and how you will administer vaccination paid leave requests.
- Develop a plan for staffing for the additional administrative tasks, as well as potential absences due to vaccine side effects.
First Person’s compliance team is monitoring guidance daily and will continue to update this article as new guidance develops. In the meantime, please reach out to me directly or your First Person consultant with questions or assistance in developing your action plan.