September 10, 2021
President Biden announced that the Department of Labor will issue an Emergency Temporary Standard (ETS) requiring employers with more than 100 employees to fully vaccinate their workforce or conduct weekly testing for unvaccinated employees. Further, the President will require that all employees of federal contractors be vaccinated, as well as employees working in health care settings that receive Medicare or Medicaid reimbursement.
The vaccine mandates are part of President Biden’s newly announced “Path out of the Pandemic” COVID-19 Action Plan, which also includes requirements and recommendations in the public education sector, as well as new funding for COVID-19 testing.
Few details regarding how the employer vaccine mandates will be implemented and enforced are provided in the President's plan, leaving several questions that will likely remain unanswered until the ETS is issued—the timing of which is also unclear.
The plan calls for an ETS “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 back to work.” With no other details provided, it remains to be seen how employers will be expected “to ensure their workforce is fully vaccinated,” as to do so could implicate several federal employment and privacy laws, including the ADA, HIPAA, Title VII, and GINA, among others. Ideally, the ETS could include a safe harbor for employers that would insulate them against liability under such laws and against any lawsuits stemming from any claimed side effects or damages from the vaccine. Employers could be subject to a $14,000 fine per violation.
Paid time off also required: According to the plan, covered employers would be required to provide paid time off for employees to get vaccinate or to recover from the side effects of vaccination.
Additionally, if employers are required to conduct weekly testing of unvaccinated workers, it remains unclear whether employers will be expected to bear the cost of such testing, and further, whether time spent testing will be considered “work time” for purposes of wage and hour laws.
Notably, the language regarding vaccine mandates for employees of federal contractors differs significantly from that for private sector employers. As mentioned earlier, private sector employers will be required to “ensure their workforces are vaccinated” or, in the alternative, conduct weekly testing. However, for federal contractors, the plan states that employees must be vaccinated, period, and does not allow for weekly testing in the alternative. This raises questions over what options federal contractors would have if they have employees who refuse to get vaccinated.
The legality of issuing the ETS is unclear. Because an ETS does not require a formal notice and comment rulemaking process, for an ETS to be issued, there must be a “grave danger” present that requires an ETS to protect employees. While the Delta variant has produced yet another alarming wave of COVID-19 cases in the United States, it is uncertain whether the present stage of the pandemic rises to the “grave danger” standard required to issue an ETS, particularly as many offices have returned employees to work over the last few months.
Outlook: Until President Biden’s Executive Orders and the Emergency Temporary Standard is published, it remains to be seen how private sector employers and federal contractors will be expected to comply with the new vaccine mandates. In the meantime, numerous legal and policy questions remain. The White House is expected to hold a business community briefing on Monday, September 13, and HR Policy will be hosting a call to discuss the implications of the new mandates, with further details coming soon.