On September 9, 2021, in its most forceful actions in combatting COVID-19, the Biden Administration announced new rules that will mandate all private employers with 100 or more employees to require those employees to be vaccinated or undergo weekly testing. It is estimated the new rules will impact roughly 80 million workers and an untold number of businesses. The vaccine requirement will be enacted through a forthcoming Emergency Temporary Standard from the Occupational Safety and Health Administration (“OSHA”). This marks the most impactful regulations since the development of the COVID-19 vaccines and will have a massive impact on workplaces and workforces across the country.
The announcement of the mandate was accompanied by President Biden’s sharp words regarding the continued hesitancy or refusal of nearly 80 million Americans to receive the COVID-19 vaccine despite multiple endeavors to incentivize and encourage vaccinations as well as the Food and Drug Administration’s full approval of the Pfizer vaccine. Those words evince a strong public policy presumption in favor of vaccine mandates and will play a role in any legal actions against the new rule.
Why you need to know about this?
Since the development and distribution of the COVID vaccines, employers have wrestled with whether they could or should require their employees to get vaccinated. That dilemma has now been rendered moot for many employers as they will now be required to impose a vaccine mandate. As previously discussed here, a mandatory vaccine policy carries with it several issues and pitfalls that employers must be aware of and prepare for. The most impactful of which is that employees may still seek to opt out of vaccinations based on medical conditions and sincerely held religious beliefs. Such requests for accommodations are expected to dramatically increase under this new rule. In turn, employers can also expect an increase in employees pursuing litigation if their accommodation request is denied. Therefore, employers must fully understand the rights and obligations of both themselves and their employees when accommodation requests are made.
In addition to requests for accommodations, employers must also be aware of:
- Disruptions to the workforce from unhappy employees;
- How testing and test results will be handled for employees who are unvaccinated;
- Many employees may leave their employment and employers may experience even smaller pools of applicants further complicating an already tight labor market;
- Confidentiality concerns regarding how employers will confirm vaccination status and the related recordkeeping;
- Possible liability risk if the vaccine causes an adverse reaction in an employee who only receives because it is mandated.
Employers should work with experienced employment counsel to consider and prepare for the above considerations before implementing a mandatory vaccine policy.
The new rule is already receiving harsh responses from those asserting the rule is an overreach and impermissible action by the Biden Administration. Critically, the rule is being developed and issued by OSHA under its statutory obligation to protect the health, safety and well-being of workers and workplaces. By going that route, many of the potential legal challenges from state and local leaders to union officials may fall on deaf ears. However, even OSHA action will not insulate or immunize employers from facing litigation and threats of litigation from their employees.
What should you do now?
Employer should immediately begin or continue working with experienced employment counsel to identify and prepare for the significant issues at play when implementing a mandatory vaccine policy. Employers can have their policy in place when the OSHA Standard becomes effective and can be further prepared to address any onrush of accommodation requests. By having an established and well-defined interactive process procedure employers can proactively establish a defense to employee claims resulting from an accommodation request denial.
This new rule is bound to cause considerable consternation and disruption within workforces and communication will be key. The OSHA Standard is still in the development stage and there are more questions/concerns than answers at this time. As more details emerge, employers will better understand their obligations and the true impact of this new rule. One such area where questions loom large are whether employers with less than 100 employees will be impacted or addressed by the OSHA Standard. Be on the lookout for further analysis as the new rule gets closer to enactment.
HLS’s employment practice group routinely advises employers on complying with ever-changing guidance on COVID-19 and related issues to lower the risks faced by employers while preserving business operations.