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September 13, 2021 | Covid-19 | Posted by Bob Greene, Senior HR Industry Analyst at Ascentis

Vaccines in the Workplace: 9 Things to Know about the Federal Vaccine Mandate

On September 9, 2021, a plainly perturbed President Joe Biden addressed the nation, once again, on the COVID crisis continuing to impact the country. Making it clear that he (and the great majority of medical experts) believes that we are still in a pandemic precisely because so many Americans (~ 80 million) age 12 and over have chosen to remain unvaccinated, the President rolled out a six-point program designed to place maximum pressure on various institutions – but primarily employers – to do everything within federal power to mandate COVID vaccines.

Through a series of Executive Orders, Biden will use his Presidential emergency powers, leveraging the enforcement powers of the Department of Labor (“DOL”), and within it, the Occupational Safety & Health Administration (“OSHA”), to implement new vaccine mandates for employers around the nation. The various new rules are expected to apply to about 80 million private sector employees, and 100 million people in total, or about 2/3 of all workers.

It is important to note at the outset that these new rules are deferential to the Centers for Disease Control (“CDC”) from a policy perspective and the Equal Employment Opportunity Commission (“EEOC”) from an employment enforcement perspective. This means that the EEOC’s previous vaccine advisories, which include exemptions for employees with disabilities or medical conditions preventing them from taking the vaccine, or sincerely held religious beliefs against vaccination, are expected to continue to apply. Note, however, that a prior available employee objection to taking the vaccine based on its Emergency Use Authorization (“EUA”) status, no longer applies since August 23 when the Pfizer vaccine became fully FDA-approved.

Highlights of the New Regulations

The new regulations are massive in scope, (note the number of individuals impacted by each program component) and include the following:

1. Vaccines will now be mandatory for all federal workers in the executive branch, as well as employees of federal contractors (~ 4 million people). Previous weekly test-out options are now eliminated for these workers. Federal employees have 75 days to comply or face progressive HR disciplinary actions which can culminate in termination.

2. Vaccines are also mandated for all health-care workers at any institution accepting Medicare or Medicaid reimbursements (~ 17 million people). Previously, the administration had applied this mandate only to workers at long-term care facilities.

3. Vaccines are also mandated for all employees at federally run schools under the federal Head Start program (~ 300,000 people)

4. Employers with 100 or more employees must require vaccine or weekly COVID testing. For private sector employers, OSHA is developing, and will shortly release an Emergency Temporary Standard (“ETS”) requiring that, for every employer or 100 or more employees (~ 80 million people), either a vaccine mandate be enforced, or unvaccinated workers provide documentation of a negative COVID test result on at least a weekly basis. Violations of this ETS, once effective, can incur penalties of up to $14,000 per occurrence (per day). Bear in mind that through the American Rescue Plan Act (“ARPA”), OSHA was infused with a one-time budget allocation of $100 million (about 1/6 of its annual budget), which they’ve indicated will be used for the hiring of additional enforcement agents through the end of fiscal 2023 (September 30, 2023.)

5. Employers to provide PTO for employees to receive vaccination. The ETS mentioned above will also establish a rule requiring employers of 100 employees or more to provide paid time off for employees to receive the vaccine, as well as paid time to recover from any vaccine-related reaction or illness.

6. At-home testing kits will be made available at-cost from major retailers for the next three months. Additionally, the HHS free testing program will be expanded to more than 10,000 additional pharmacies nationwide. The President is invoking the Defense Production Act (just as was done for vaccine production itself) to increase the speed at which testing kits are manufactured and made available for sale to the general public.

7. Interstate travel masking requirements will remain in effect. Interstate travel masking requirements (airlines, airports, trains, inter-city bus services, etc.) will remain in effect through at least January 18, 2022, and the penalties for violators of those rules will double.

8. Expansion of the Economic Injury Disaster Loan program. The President’s plan also expands the Economic Injury Disaster Loan (“EIDL”) program administered by the Small Business Administration (“SBA”). The maximum funding per business will increase from $500,000 to $2 million. The Main Street business loan program will establish another “small-business window” (timing to be announced) – 30 days of access where only small businesses seeking loans of $500,000 or less may apply.

9. Simplified Forgiveness Processes. While the new orders do not extend the Paycheck Protection Program (“PPP”), or re-open it for new loans, the forgiveness process will be simplified once again. This wildly successful program resulted in 11 million loans being made, with most still outstanding and pending forgiveness determinations. The new forgiveness rules apply to 3.5 million borrowers with loans of $150,000 or less and involve the SBA sending pre-completed forgiveness applications out to eligible borrowers. These applications can potentially be completed in as little as 6 minutes and submitted back to the SBA on a smartphone!

Three Final Thoughts

  1. First, one of the most important accomplishments this new program may achieve is to “level the playing field” among employers on the issue of vaccine mandates. A recent survey of 960 employers found that the number of companies with vaccine mandates has risen dramatically, from the single digits in the first few months of 2021 to about 21 percent today, but more importantly, a full 52 percent of surveyed employers planned to have a mandate in effect by year-end. The President’s message is clear: that level of vaccine mandate is not sufficient to end the pandemic, or even simply to avoid more deadly mutations (variants) developing, that could even be immune to the current vaccine formulations. We also know that the job market is experiencing something of a resurgence, with article after article commenting on “the great resignation” – pent-up demand for employees to seek new employment situations. This set of federal mandates will even the playing field for those employers who already have established mandates or were planning to do so without OSHA direction. If employees seeking to avoid vaccination could simply walk out the door when an employer puts a mandate in place, and get a job down the street at a competitor that doesn’t mandate vaccines, that’s a disincentive for employers to do the right thing, in the Administration’s view. This set of orders has the potential to eliminate that dynamic.
  2. Second, employers who were “on the fence” about maintaining records of their employees’ vaccines will now be required to do so by OSHA directive. Any concerns about HIPAA privacy or the unintentional elevation of a vaccination mandate to “medical examination” status have already been resolved by the EEOC’s direction on the topic. Employers will now have a business need-to-know to keep basic vaccination records (dates received, number and type, for example), although they must be kept confidential (e.g., likely security-restricted only to company medical officers and/or HR staff.)
  3. Finally, conjecture began immediately after the President’s speech about whether it was within federal powers to establish these rules. Certain governors immediately responded that they would “see the President in court.” There was a fair amount of skepticism in the HR community about how quickly OSHA would issue these new rules, in part because they’ve been perceived to have been slow in issuing new COVID-related compliance standards in the past. Perhaps to counter this notion, OSHA responded to inquiries that they expect to have the new regulations issued as early as September 17. Additionally, most legal experts believe that the President is on safe legal ground with these new policies, precisely because:
  • He is enforcing the mandate through OSHA
  • It is expected to continue to allow exemptions for disability and religious belief objections as reinforced recently by the EEOC
  • For private sector employers (although not for federal employees and contractors), the plan continues to offer a weekly testing opt-out.

Since its inception in 1970, OSHA has enforced the general duty clause of the Occupational Safety and Health Act, which requires employers to provide each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The CDC has been unhesitating in its frequent assessments that COVID infections represent just such a recognized hazard. According to legal experts, challengers to these new rules will have an uphill battle on their hands, although they may be able to delay some aspects of their implementation with court challenges.

For those wishing to read the White House’s full, very well-organized, detail of this new COVID vaccine “battle plan,” it can be found here: “Path Out of the Pandemic”.

If you are wanting to learn more about how to navigate these mandates in the workplace, register to our upcoming webinar "Vaccines in the Workplace: Understanding & Implementing Requirements for Employees" on September 30th where Kate Bischoff will go into more detail regarding these changes.

Bob Greene currently serves as Senior HR Industry Analyst at Ascentis. Bob’s 40 years in the human capital management industry have been spent in practitioner, consultant and vendor/partner roles. As practitioner, he managed payroll for a 5,000-person bank in New Jersey. As consultant, he spent 8 years advising customers in HRMS, and payroll and benefits system design as well as acquisition strategies. Bob also built a strategic HCM advisory practice for Xcelicor (later acquired by Deloitte Consulting.)