Employers should prepare for federally mandated workplace vaccination requirements 

On Sept. 9, President Biden announced forthcoming rules and regulations as part of a “Path out of the Pandemic,” including a variety of workplace vaccination mandates for three different types of businesses: (1) private employers with over 100 employees; (2) health care employers; and (3) employers with federal contracts.  The rules and regulations are designed to increase both public and private employee vaccination rates and will include the following:

Private employers with over 100 employees

• The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing rules under an Emergency Temporary Standard 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.
• As part of this rule, employers must also provide paid time off for employees to get vaccinated and to those who may experience symptoms from the vaccine.
• There has been no exact timeline given on when these requirements will go into effect, but it is likely the rule will be issued in the coming weeks.
• Covered employers who do not comply with the OSHA standard could face OSHA citations and penalties of up to $14,000 per violation.

Health care employers

• The Centers for Medicare and 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, physician practices, dialysis facilities, ambulatory surgical centers and home health agencies.
• This rule builds on the previously announced vaccination requirement for nursing facilities, and will apply to nursing home staff members as well as staff  members in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers and staff members who are not involved in direct patient, resident or client care.
• It does not appear that health care employers will have the same option as non-health care private employers to give their employees the choice to either be vaccinated or undergo weekly testing.  Instead, health care employers apparently must require all employees to get vaccinated and then will likely need to use regular testing as a potential accommodation for those individuals with disabilities and sincerely held religious beliefs that prevent them from being vaccinated.
• While no specific date has been announced as to when the new rule will go into effect, CMS has indicated that an interim final rule will potentially be released in the next several weeks and will include a public comment period.

  

Federal contractors

• On Sept. 24, the first guidance regarding vaccination and other requirements for federal contractor employees was issued. The new guidance includes three main requirements: 1) Vaccination of covered contractor employees; 2) Compliance with Centers for Disease Control and Prevention guidance related to masking and physical distancing; and 3) Designation of a person or persons to coordinate COVID-19 workplace safety efforts at the workplace.
• All employees working on or in connection with a covered contract or working at the covered contractor workplace will be required to provide proof of full vaccination in the near future (most by Dec. 8, although determination of the deadline is complicated).
• Covered contractors are required to implement specific masking and physical distancing protocols and designate a person or persons to coordinate the implementation of and compliance with the requirements.

Notably, the only binding regulations that have been issued to date are the regulations related to federal contractors. Otherwise, the Path out of the Pandemic document issued by the Biden Administration is essentially an announcement of things to come, as opposed to a final set of regulations. It leaves many questions unanswered, including whether the requirements will apply to remote employees, how the 100-employee threshold will be counted, whether/how employers should collect proof of vaccination, who pays for testing, whether time spent testing is compensable time under the Fair Labor Standards Act and how employers should address requests for medical and/or religious exemptions. Those answers, and presumably a timetable with deadlines, should come in the next few weeks. When the more detailed regulations come, impacted employers should develop clear policies reflecting vaccination requirements and a process for implementing them.

— John Ashby is a partner at Hawley Troxell, an experienced employment lawyer and chair of the firm’s employment law practice group. Taylor Barton is an associate in the firm’s litigation practice group, focusing on employment matters.