In the most significant decree to date, President Joe Biden is requiring companies with 100 or more employees to get vaccinated as well as offer paid time off to do so. What does the new action plan entail? What has the response been? What should you do? Read on.
President Joseph Biden’s six-pronged COVID-19 action plan, entitled “Path Out of the Pandemic,” contains sweeping COVID-19 measures destined to impact many businesses. Among other things, the plan contains new vaccine requirements for certain private sector, federal, and health care workers.
Significantly, the plan requires all employers with 100 or more employees to ensure that their workers are fully vaccinated against COVID-19 or submit to weekly testing and produce negative test results before coming to work. The plan further provides that employers with 100 or more employees will be required to provide paid time off to workers for the time it takes to get vaccinated or recover from side effects post-vaccination. The Occupational Safety and Health Administration (OSHA) will be issuing an Emergency Temporary Standard (ETS) implementing the new requirements. No deadline has yet been established for the issuance of the ETS, which could take several weeks.
The plan also requires all employees of the federal executive branch and federal government contractors, and employees in most health care settings that receive Medicare or Medicaid reimbursement, to be vaccinated against COVID-19.
Challenges to the plan and its legality have already begun
The plan has already come under attack by certain Republican governors and large companies. For instance, on September 14, 2021, Arizona became the first state to sue over the new federal vaccine mandates. The lawsuit alleges that the Biden administration exceeded its authority under the U.S. Constitution, and that the mandates constitute national origin and alienage discrimination in violation of the Equal Protection Clause by imposing requirements on U.S. citizens and lawfully employed aliens, but not on unauthorized aliens. Other states have threatened to fight the vaccine mandates as well, including Florida, Texas, Ohio, South Dakota, and Georgia.
Meanwhile, President Biden is expected to meet with several executives of large companies, such as The Walt Disney Company, Microsoft, and Walgreens, yesterday, to discuss the new mandates. Several questions remain unanswered, including with regard to requiring proof of vaccination, paid time off, types of acceptable COVID-19 tests, testing costs, etc.
Nonetheless, employers with 100 or more employees should be prepared to comply. This may include discussing whether to adopt a mandatory vaccination program or permit weekly testing, procedures for ascertaining vaccination status, how to handle accommodation requests, and methods for tracking test results.
The pandemic response is fast changing and constantly evolving. We’ve been following the status of vaccination mandates in prior articles: Yes, employers can force you to get the Covid-19 vaccine, but here’s what they need to consider, and Covid-19 vaccine mandates and legal cases: what you need to know. The only thing we know for certain is that these changes will continue and with each new mandate we can come to expect a series of challenges and legal questions.
Employers should monitor for updates regarding the new vaccine and paid time off requirements, and are reminded to consult employment counsel prior to implementing any vaccine mandate.
Marisa Sandler, employment lawyer and litigator at Tannenbaum Halpern Syracuse & Hirschtritt LLP. Maryann Stallone, a partner at the firm, also contributed.