Last week, President Biden announced a surprise federal vaccine mandate for employers with more than 100 employees. Since that time, many legal experts have stated that such a mandate is likely to be struck down by courts. Where does that leave employers? Good question.
Our good friends at Martin, Disiere, Jefferson, and Wisdom, L.L.P. have offered the following guidance while we wait for more clarity:
Last Thursday, President Biden issued new Covid-19 requirements. Most importantly, employers with 100 or more employees will have to either mandate vaccination, or require weekly testing for unvaccinated employees. This will be accomplished through OSHA issuing an emergency temporary standard. Employers will have to provide paid time off for vaccination and for vaccination recovery for sick employees. Failure to adhere to this new requirement could result in $14,000 citations. Many questions remain, including:
When will the standard be issued? Unclear but probably within the next month.
When will it go into effect? Again unclear, but probably later this fall.
Does the 100 employee limit apply company-wide or by facility? There has been nothing announced to date that would apply it on a facility basis.
Will the citations be issued company-wide or per facility? Typically, OSHA citations are facility specific.
Who will pay for the weekly testing? Nothing has been announced on this. Our guess is that testing may be subsidized; otherwise, expect the cost to be on the employer.
How will this standard interact with the EEOC rules regarding vaccination, especially as it pertains to employees who are unable to be vaccinated due to a disability or because of a sincerely held religious belief? Not addressed, but we suspect that the standard will not override the EEOC rules.
So, it is probably too early to say how this will ultimately be resolved. At this point, the EEOC has made it clear that employers can legally mandate vaccinations if they choose to do so. Regardless of how the legality of this mandate is resolved, that will still be the case.