What Employers Need to Know About President Biden’s Employer Vaccine Mandates

On September 9, 2021, President Biden announced a six-pronged national strategy to combat the COVID-19 pandemic.1 Several of these initiatives will significantly impact employers, the most notable being that all companies with 100 or more employees (including private employers) must require their employees to be vaccinated or submit to weekly COVID-19 testing.2 Large employers must also provide paid time off to employees for the time it takes for workers to get vaccinated or recover post-vaccination.3 While many large employers, including Google, Facebook, McDonald’s, Walmart, and Microsoft, had already announced some form of vaccine mandates, many other employers are still grappling with the decision. For better or worse, President Biden has taken the decision away from those employers subject to his action plan.

Many details of the new requirements are unknown because the government has not yet published the implementing standards and regulations. The requirements will also likely face many legal challenges resulting in possible modifications or delays. While we await publication of the standards, this legal bulletin outlines what we know so far, answers frequently asked questions, and explains what employers can do now to prepare.

What new requirements will apply to employers?

1. All employers with 100 or more employees will be required to ensure their employees are vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.4
   
   The federal Occupational Safety and Health Administration (“OSHA”), part of the Department of Labor (“DOL”), will issue an Emergency Temporary Standard (“OSHA ETS”) to implement the mandatory vaccine requirement.5 Until the OSHA ETS is issued, questions like whether the term “vaccinated” will be defined as one dose, two doses, or two doses with a booster shot are unknown.6 Also unclear is which employees will count toward the 100-employee threshold (e.g., only full time or also part time) or whether exceptions will exist for individuals who can demonstrate they have COVID-19 antibodies due to a prior infection. In the interim, employers can be guided by other employment laws that require compliance based on employee counts. For example, under the Worker Adjustment and Retraining Notification Act, private employers with at least 100 employees must submit EEO-1 reports.7
   
   That the rule as announced would require employees to be vaccinated or tested “before coming to work” implies the rule will apply only to employees who work in company offices or facilities, thus exempting remote workers. But again, until the OSHA EST is issued, remote workers’ exclusion (or inclusion) remains unknown. We will also need to wait for the standards to clarify who will cover the cost of testing unvaccinated workers—the employer, the government, employees, or perhaps some combination of all three.
   
   
2. Employers with 100 or more employees will be required to provide employees with paid time off to get vaccinated.8
   
   The OSHA ETS will include a rule requiring 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.”9 In addition to the unknowns noted above with the 100-employee threshold and remote workers, the amount of time off required, minimum payment amount, and definition of “under the weather” have not yet been communicated. We also do not yet know what proof employers can require employees to provide to demonstrate their need for leave and whether employers can take steps to verify the employee’s medical status, such as through a second opinion. President Biden had previously announced paid leave tax credit that will offset the cost for employers with fewer than 500 employees to provide full pay for any time their employees need to get a COVID-19 vaccination or recover from that vaccination.10 Additional tax credits were not mentioned in his September 9th action plan announcement.
   
   
3. Vaccinations will be required for all federal workers and certain federal contractors, with no weekly testing alternative.11
   
   The federal government had already required federal employees and on-site federal contractors to either be vaccinated or undergo regular COVID-19 testing.12 The new initiative removes testing as an alternative to the vaccine and extends the requirement beyond on-site federal contractors.13 The new mandate will apply to more than two million federal employees.14 The federal contractor requirement will apply to all new, renewed, and extended contracts entered after October 15, 2021.15 Federal contractors currently employ approximately five million individuals, but coverage exclusions are included in the new requirements.16 For example, the new requirement does not apply to federal contracts that are grants, contracts under the threshold for bidding procedures ($250,000), employees who perform work outside of the United States, or subcontracts solely for the provision of products.
   
   
4. Vaccines will be required for all healthcare workers at Medicare and Medicaid participating hospitals and other healthcare settings.17
   
   Vaccinations will be required for workers in health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.18 This healthcare worker requirement will apply to “clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care”—approximately 50,000 providers, covering most health care workers across the country.19 As with federal employees, no testing alternative is available.20
   
   

What is the deadline to comply?
The deadline for compliance with the private employer vaccine mandate has not yet been set and will likely be announced when the OSHA ETS is issued. The OSHA ETS standard will undergo an expedited review process before taking effect and will not involve public comment. The White House anticipates its release in the coming weeks and an effective date shortly thereafter.

Likewise, the deadline for compliance with the healthcare worker vaccine requirement has not been set. For federal employees, their employers will have seventy-five days to comply with the new orders, and each federal agency has been directed to develop its own compliance plan, with guidance on implementation from the Safer Federal Workforce Task Force (Task Force) to come within seven days of President Biden’s Executive Order.21 For federal contractors, each federal agency’s compliance plan will include applicable guidance for their workplace.

What are the penalties for noncompliance?
A senior White House official said that OSHA would have the ability to fine employers up to $13,600 per violation of the vaccine mandate.22

Can employers terminate employees who refuse to become vaccinated?
The OSHA ETS will likely include information regarding employer obligations or options concerning employee noncompliance. Generally speaking, we anticipate employers will have the right to terminate non-compliant employees (with certain exceptions for employees who cannot be vaccinated due to certain medical conditions or religious beliefs).

Do employers with unionized workforces have to bargain with the union before enforcing the requirement?
Employers with unionized workforces need to carefully review their collective bargaining agreements and past practices to determine if they must negotiate with the union before implementing the new COVID-19 rules, as employer policies that could result in discipline or discharge are mandatory subjects of bargaining.23 Employers can implement such rules without bargaining if the union has waived its right to bargain, however. For example, a waiver can occur if the collective bargaining agreement allows the employer to unilaterally impose reasonable workplace safety and health rules or if the parties have an established practice of letting the employer impose new work rules without bargaining.

That the employer policy is based on a statutory requirement does not necessarily excuse an employer from its bargaining obligations. For example, in a recent decision by the National Labor Relations Board (“NLRB”),24 it found that the employer’s obligation to comply with the Immigration Reform and Control Act of 1986 did not excuse the employer from bargaining over requiring all employees to submit updated I-9 forms. The NLRB found that the employer was obligated to bargain because the employer had discretion on “the amount of time [the employer] would give an employee to obtain and present documents that establish the employee’s identity.”25 Specifically, an employer must give a union notice and an opportunity to bargain about the effects of a managerial decision on union employees, even if the employer has no obligation to bargain about the decision itself.26 The NLRB requires pre-implementation notice because the employer and union can explore alternatives to avoid or reduce the decision’s impact without questioning the decision itself.27 Thus, an employer may be required to bargain over the impact the particulars of the employer’s policy could have on employees’ terms and conditions of employment.

Can employers continue to provide incentives to encourage employees to become vaccinated and surcharges to employees who do not?
Employers subject to the new action plan mandate need to examine their vaccine incentive programs in light of the new mandatory nature of the vaccine. The Health Insurance Portability and Accountability Act (“HIPPA”) generally prohibits treating group health plan participants differently based upon a health factor. An exception exists for incentives that comply with the HIPPA wellness program rules. Under a compliant program, an employer may condition incentives on an employee’s voluntary participation in a wellness program. A vaccine mandate could create issues under HIPPA, as the employer program may no longer be considered “voluntary.” That said, giving employees the option to undergo testing in place of vaccines could maintain the program’s voluntary nature. Federal employers and federal contractors mandating vaccines based on their federal contractor status may not have this option, however, as testing will no longer be an alternative to vaccines for federal contractors.

If the employer raises employee premiums, employers must ensure the plan will still meet Affordable Care Act affordability requirements. Guidance from the EEOC in May 2021 clarified that under the ADA, an employer may offer employees an incentive to obtain a vaccine administered by the employer or its agent if the incentive is “not so substantial as to be coercive.” The EEOC’s guidance states no specific limit on incentives for vaccinations that employers or their agents do not administer. With both incentives and surcharges, employers must also provide accommodations for employee’s religious beliefs or disabilities and make alternatives available to allow eligible employees to avoid the surcharge.

If all employees are vaccinated, can an employer still require employees to wear masks?
Employers may still maintain additional safety standards beyond those that are outlined in the mandate. Employees may not be comfortable working without masks even if the employer has required all employees to be vaccinated. Employees may consider themselves at risk for many reasons, including increased vulnerability to COVID-19 based on pre-existing health conditions or skepticism toward the efficacy of vaccines.28 Employees fully vaccinated or not may be nervous about direct interactions with other employees or customers (who may or may not be fully vaccinated) who do not wear masks. In light of these factors, employers must carefully consider changing existing safety measures, including mask and physical distancing arrangements, even after vaccines have been mandated.29

What can employers do now to prepare?
While employers should not finalize their COVID-19 vaccine and time-off policies before the OSHA ETS standards are issued, employers can take the following steps now:

• Develop and communicate an easy process for employees to request accommodations for certain medical conditions or religious beliefs.
• Consider in advance the potential accommodations that can be offered and build a flexible repertoire of possible alternative accommodations based on employee location and duties.
• Establish a formal process, whether internal or through counsel, to review undue hardship conclusions or the discipline or termination of any employee for refusal to follow any company safety requirements, including getting a vaccine.
• Be prepared to update external job postings to include the vaccine requirement.
• Confirm processes for collecting and retaining medical documentation to ensure compliance with confidentiality requirements under the Americans with Disabilities Act and review other state-specific privacy rules (such as in California) related to medical documentation.

Where can I get more information?
We will continue to monitor developments. If you have any questions or would like additional information, please reach out to any L&B attorneys with whom you work.
[1] Path Out of the Pandemic, THE WHITE HOUSE, https://www.whitehouse.gov/COVIDplan/ (Sept. 9, 2021). The plan’s six pillars are: vaccinating the unvaccinated; furthering protection for the unvaccinated; keeping schools safely open; increasing testing and requiring masking; protecting economic recovery; and improving care for those with COVID-19. Id.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Currently, “fully vaccinated” means either two doses of an mRNA COVID-19 vaccine or one dose of Johnson-& Johnson’s COVID-19 vaccine. When You’ve Been Fully Vaccinated How to Protect Yourself and Others, CDC, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html (Sept. 1, 2021).
The Pfizer-BioTech COVID-19 is the only vaccine that has received full Food and Drug Administration (“FDA”) approval. The Moderna and Janssen COVID-19 vaccines have been authorized by the FDA for emergency use only at this point. That some of the vaccines were approved only under emergency authorization has been an often-cited source of concern for vaccine-hesitant individuals. As to boosters, the federal government previously announced booster doses would become more generally available the week of September 20, 2021. The United States Centers for Disease Control and Prevention’s (“CDC”) Advisory Committee on Immunization Practices will be making a recommendation regarding boosters soon, but boosters have not yet been authorized by the FDA beyond those individuals who are immunocompromised. See Coronavirus (COVID) Update: FDA Authorizes Additional Vaccine Dose for Certain Immunocompromised Individuals, U.S. Food & Drug Administration, https://www.fda.gov/news-events/press-announcements/coronavirus-COVID-19-update-fda-authorizes-additional-vaccine-dose-certain-immunocompromised (Aug. 12, 2021). The FDA has currently taken the position that most individuals who are fully vaccinated are adequately protected without a booster.
[7] EEO-1 Component 1 Data Collection, What Companies Must File, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, https://eeocdata.org/pdfs/202%20What%20Companies%20Must%20File.pdf (undated).
[8] Path Out of the Pandemic, THE WHITE HOUSE, https://www.whitehouse.gov/COVIDplan/ (Sept. 9, 2021).
[9] Id.
[10] FACT SHEET: President Biden to Call on All Employers to Provide Paid Time Off for Employees to Get Vaccinated After Meeting Goal of 200 Million Shots in the First 100 Days, THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/21/fact-sheet-president-biden-to-call-on-all-employers-to-provide-paid-time-off-for-employees-to-get-vaccinated-after-meeting-goal-of-200-million-shots-in-the-first-100-days/ (Apr. 21, 2021).
[11] Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-COVID-safety-protocols-for-federal-contractors/ (Sept. 9, 2021); Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, The White House, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-employees/ (Sept. 9, 2021).
[12] On July 29, 2021, President Biden announced all federal employees and on-site federal contractors would be required to attest to their vaccination status or submit to once or twice weekly testing, wear a mask, socially distance, and be restricted from official travel. See FACT SHEET: President Biden to Announce New Actions to Get More Americans Vaccinated and Slow the Spread of the Delta Variant, THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-president-biden-to-announce-new-actions-to-get-more-americans-vaccinated-and-slow-the-spread-of-the-delta-variant/ (July 29, 2021).
[13] Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-COVID-safety-protocols-for-federal-contractors/ (Sept. 9, 2021).
[14] Path Out of the Pandemic, THE WHITE HOUSE, https://www.whitehouse.gov/COVIDplan/ (last visited Sept. 11, 2021); Congressional Research Service, Federal Workplace Statistics Sources: OPM and OMB, https://sgp.fas.org/crs/misc/R43590.pdf (June 24, 2021).
[15] Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-COVID-safety-protocols-for-federal-contractors/ (Sept. 9, 2021).
[16] Id.; see also Paul C. Light, The True Size of Government is Nearing a Record High, BROOKINGS, https://www.brookings.edu/blog/fixgov/2020/10/07/the-true-size-of-government-is-nearing-a-record-high/ (Oct. 7, 2020).
[17] Path Out of the Pandemic, THE WHITE HOUSE, https://www.whitehouse.gov/COVIDplan/.
[18] Id. The CDC also has issued separate updated guidance that applies to all healthcare personnel while at work and residents while they are being cared for in a healthcare setting. Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html (Apr. 27, 2021).
[19] Path Out of the Pandemic, THE WHITE HOUSE, https://www.whitehouse.gov/COVIDplan/, (Sept. 9, 2021).
[20] Path Out of the Pandemic, THE WHITE HOUSE, https://www.whitehouse.gov/COVIDplan/ (Sept. 9, 2021).
[21] Path Out of the Pandemic, THE WHITE HOUSE, https://www.whitehouse.gov/COVIDplan/ (Sept. 11, 2021).
[22] Jen Psaki, Press Sec’y, THE WHITE HOUSE, Press Briefing (Sept. 10, 2021, 3:02 PM)
[23] The National Labor Relations Act obligates employers to bargain with existing unions over wages, hours, and terms and conditions of employment. 29 U.S.C. § 158 (a)(5).
[24] Frontier Commc’ns Corp., 370 NLRB No. 131 (2021).
[25] Id.
[26] Tramont Mfg., LLC, 369 NLRB No. 136, slip op. at 5 (2020); Allison Corp., 330 NLRB 1363, 1365 (2000) (citing First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 681-82 (1981)).
[27] Good Samaritan Hosp., 335 NLRB 901, 903-904 (2001); Allison Corp., 330 NLRB at 1366.
[28] See Ariana Eunjung Cha, Coronavirus Vaccines May Not Work In Some People. It’s Because Of Their Underlying Conditions, WASH. POST, https://www.washingtonpost.com/health/2021/05/18/immunocompromised-coronavirus-vaccines-response (May 18, 2021, 8:00 AM).
[29] For additional information and guidance, see OSHA, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, UNITED STATES DEPARTMENT OF LABOR, https://www.osha.gov/coronavirus/safework (Jan. 29, 2021).