Explaining What Biden's Vaccine Plan Requires

Since vaccines became widely available earlier this year, employers have been trying to determine the right approach to vaccination policies for employees, balancing the privacy of individuals with the need for a safe working environment that limits disruptions. In September, the Biden administration announced its plan to remove some of that decision-making by mandating large employers to either require employees to become vaccinated or submit to COVID-19 testing. Businesses that don’t comply with the requirements may face fines of $13,000 per violation.

The move prompted mixed reactions from the business community. Although a U.S. Chamber of Commerce survey found that 64 percent of small business owners supported both the Biden administration’s mandate or business-initiated mandates, many still had questions about how the vaccine requirements would work in practice. The U.S. Chamber complied many of those questions and shared them with the White House and the Occupational Safety and Health Administration (OSHA) as the agency developed compliance rules. Some businesses were concerned with how the mandate would work in practice and whether any employees would be exempted, while others sought guidance on how to conduct testing and what to do when employees refuse the vaccine.

OSHA published those rules, called an Emergency Temporary Standard, in early November. It was immediately challenged in court and the implementation is now uncertain. FEDA News & Views spoke with Marc Freedman, vice president of employment policy for the U.S. Chamber, about what businesses should know about the vaccine mandate.

OSHA issued their highly anticipated Emergency Temporary Standard for vaccines or testing on Nov.  5. What does it require?
Marc Freedman: In general, it requires employers with 100 or more employees to make sure their employees are fully vaccinated (have completed all their shots) by Jan. 4. If they are not fully vaccinated by then, they must submit a negative COVID test at least weekly and wear masks when at the workplace.

Are there other requirements?
Yes. By Dec. 6, employers have to have surveyed their workforce to determine who has been vaccinated and who has not, and require any unvaccinated employees to wear masks while at the workplace. Employers also need to have communicated to employees the benefits of vaccines and their policy and procedures (OSHA has sample materials on their website, osha.gov).

I’ve heard the ETS has been challenged in court. What’s the latest?
The ETS has been challenged in many different federal court circuits around the country. As of Nov. 16, the ETS has been blocked from going into effect by a federal court in New Orleans (the U.S. Court of Appeals for the Fifth Circuit). However, there is much legal process yet to take place and all the cases will be consolidated and transferred to one court chosen by a lottery. Many experts expect the case to eventually go to the Supreme Court.

What should employers do in light of the stay?
Although OSHA is not permitted to move forward with implementation or enforcement, employers should understand that the stay is not permanent and could change. Therefore, employers should be prepared to comply with the ETS if the stay is lifted.