Opinion: The lowdown on Biden’s vaccine mandate for private business

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President Joe Biden recently took several steps that will require certain employers to ensure their employees are vaccinated or are tested weekly for COVID-19.

These steps include two executive orders that apply to federal government employees and employers who contract with the federal government.

The president also announced that the Occupational Safety and Health Administration will implement an Emergency Temporary Standard. This new policy will require vaccination or weekly testing for employers with more than 100 employees.

The executive order on Ensuring Adequate COVID Safety Protocols for Federal Contractors applies the vaccine mandate to companies that contract or subcontract with the federal government. The order requires that any new federal contract or renewal, including lower-tier subcontracts, include a clause that the contractor or subcontractor will comply with all guidance for workplace locations published by the Safer Federal Workforce Taskforce.

The new task force policy provides an exemption for disabilities or religious beliefs that prohibit an employee from receiving the vaccine.

The president also instructed OSHA to develop an Emergency Temporary Standard to mandate all employers with 100 or more employees require vaccinations or require any unvaccinated employees to produce a negative test result on at least a weekly basis.

It is estimated that the ETS will impact more than 80 million employees nationwide. The vaccination or testing requirement will initially be effective for six months, until a permanent rule is determined.

During a briefing on Sept. 10, OSHA representatives stated that the ETS will not apply to remote workers that do not come into the workplace, but it will apply to employees who work outside the worksite but around others.

Employees will be counted on a companywide basis, not by independent site. At the moment, it is not clear how the ETS will be applied to companies with independent franchises.

Employers will be required to provide paid time off to allow workers to receive the vaccine or recover from any post-vaccination side effects.

With respect to weekly testing, OSHA has not announced who will be required to pay for weekly testing or whether employers will be required to provide paid time off for weekly testing.

However, employers are not required to allow weekly testing as an alternative to mandatory vaccination, except where required by law as a religious or medical accommodation.

Each of those accommodations is subject to different legal standards for whether the employer is required to provide the accommodation. 

OSHA representatives said they have not decided on the process for employers verifying the vaccination status of their employees. 

Given the fact that the number of workers affected by the ETS is vastly greater than the number of OSHA inspectors, there may be an issue with the ability of OSHA to monitor and police compliance with the ETS.

OSHA does have the ability to fine employers for violations of the ETS. Violation is likely to be considered either “serious” or “willful,” as defined by OSHA. A serious violation carries a maximum fine of $13,653, and a willful violation can result in a fine up to $136,532.

OSHA is allowed to issue an ETS with substantial evidence that employees are exposed to grave danger and the ETS is necessary to protect the employees. OSHA has previously declined to issue an ETS related to all employees, and it isn’t entirely clear whether it will issue an ETS consistent with the president’s instructions.

As of press time, at least 27 states and many private groups have indicated that they intend to take legal action to block the ETS.

Gov. Mike Parson indicated that he may call a special session of the Missouri Legislature to make mandates a violation of state law.

This could result in a conflict between federal and state law, making this situation even more difficult for employers to navigate. 

Robert Petrowsky is an associate in the estate planning and transactional practice groups of Carnahan, Evans, Cantwell & Brown PC. He can be reached at rpetrowsky@cecb.com.