Vaccine Mandate for Private Employers
Even if you did not watch the Presidential address to the nation on September 9, you have no doubt seen some sort of breaking news or pop-up announcement indicating that the Executive Office will be “mandating vaccines for all employer with 100+ employees.” To clarify, the vaccine mandate rule will actually be coming from the Department of Labor’s Occupational Safety and Health Administration (OSHA). Currently, OSHA is working on developing a new administrative rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated. As an alternative, employers can require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. In order to implement this mandate, OSHA will issue an Emergency Temporary Standard (ETS). This new vaccination requirement is separate and apart from the mandates already imposed on federal workers, contractors who do business with the federal government and certain medical care workers and medical facilities that received Medicare and Medicaid funding. This new OSHA rule will apply to private sector employees.
It is currently anticipated that under the new rule, employers will have to give workers paid time off to get vaccinated or to recover from side effects of getting vaccinated. Employers that fail to comply with the vaccine mandate or paid-time-off requirements may face fines up to $14,000 per violation. The new OSHA rule should be issued in the next couple of weeks. There will likely be a set time-period for employers to come into compliance. Federal employees required to be vaccinated were given 75 days for compliance and it is anticipated that the employer compliance window will likely be similar under the new OSHA rule. There will likely be options for religious or medical exemptions, but at this time it is unknown.
The takeaway: Employers with 100+ employees should begin preparing for the issuance of this vaccine requirement rule and for getting into compliance by year-end. Employers will want to have a mandatory vaccine policy in place that provide for exemptions for people with a qualified disability (as defined under the ADA) and for people with sincerely held religious beliefs (as defined under Title VII).