White House Announces Vaccine Mandates for Large Employers
By Allison Oasis Kahn , Carlton Fields
Private employers with 100 or more employees will be required to mandate COVID-19 vaccines or require weekly testing for their employees , the White House announced Thursday . The Occupational Safety and Health Administration ( OSHA ) will issue an emergency temporary standard ( ETS ) implementing the new obligation . Noncompliance with the ETS will expose employers to significant fines .
Employees will get paid time off to get vaccinated and recover from the vaccine , although it ’ s not yet clear whether employers may be able to claim refundable tax credits to reimburse them for the paid time off . The American Rescue Plan Act of 2021 already allows businesses with fewer than 500 employees to do this . But this law sunsets on September 30 , 2021 .
Employees who refuse the vaccination will have to produce at least weekly negative test results to their employers . An ETS takes effect immediately ( without a public comment period ) and stays in effect until superseded by a permanent standard . The validity can , and will , be challenged in the courts .
Some employers will be pleased by the ETS . Many businesses have not implemented mandatory vaccination policies fearing a mass exodus of their workforce ( particularly those industries already suffering from employee shortages ). Employees contemplating an employment departure over an employer ’ s vaccine mandate may now stay with an employer because the employer ’ s competitors , even without a vaccination mandate , will likely be subject to the ETS requiring vaccines . Employers may still require the vaccine for all employees ( subject to EEOC reasonable accommodation considerations for disability and religion ).
The ETS raises wage and hour issues . While COVID-19 testing is generally available free of charge , it ’ s likely that more insurance companies will stop paying for routine COVID testing . It ’ s possible that employees , not employers , will bear these costs per the ETS to pressure employees to get vaccinated . However , until we know more , employers should be cautious of nonexempt , hourly workers bearing the cost of testing where such expenses bring a worker ’ s hourly rate below the minimum wage in violation of the Fair Labor Standards Act .
For employers with 100 or more employees , we are still waiting on OSHA to issue the implementing regulations .
For all Federal contractors , the mandate takes effect December 8 , 2021 .
4 DITCHMEN • OCTOBER 2021