Last week, President Biden announced his plan to implement a new vaccine mandate on businesses with more than 100 employees. Whether your business will be covered by the mandate, it is important to understand what you can and cannot do when implementing a Covid-19 policy that includes a vaccine mandate.
The mandate has not been issued yet, but when it is, it will require private businesses with more than 100 employees to either mandate the vaccine, or require that unvaccinated employees undergo Covid testing once per week. The new regulation will be issued by the Occupational Safety and Health Administration under an Emergency Temporary Standard. The White House has estimated that the mandate will impact 80 million workers, or two-thirds of the workforce in this country.
The mandate will also require that the businesses which fall under the regulation give employees paid time off to receive the vaccine, as well as time needed, if necessary, to recover from any side effects. The Biden administration has not set a timeline for the mandate or a deadline for OSHA to issue the Emergency Temporary Standard. Therefore, it is unclear when it will be issued and what the timeline will be. Whenever the mandate is issued, employers covered by the regulation who do not implement the mandate could face fines up to $14,000 per violation. It is not clear how this will be enforced, or what “per violation” will mean (i.e., per facility, etc.). It is also unclear whether OSHA will require employers to obtain proof of vaccination status, who will be required to pay for the tests for those employees that are unvaccinated, and whether a particular Covid-test will be required. These are all details that will be revealed once OHSA issues the mandate.
Whether your business falls under the mandate or not, if an employer implements a vaccine mandate, the employer must provide for reasonable accommodations under Title VII and the Americans with Disabilities Act (ADA) for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for Covid-19, unless the accommodation would pose an undue hardship on the employer’s business. For those employees that are granted a reasonable accommodation, the employer may implement other preventative measures, such as requiring that the employee wear a mask, social distancing, requiring that the employee submit to Covid-testing, or providing a remote work arrangement.
If your private business employs less than 100 employees, the mandate will not apply to you. Many businesses, however, regardless of size, have made the decision to implement some version of a vaccine mandate or Covid policy. If your business has implemented a Covid-19 policy, it is important that the policy is in writing and provided to your employees. If you have an employee handbook, it should be supplemented to include the policy, and the policy should be clearly stated. If you have made the decision to require the vaccine for your employees, your policy should state that reasonable accommodations based upon disability or religious beliefs will be considered on a case by case basis. Identify who an employee should speak to if they are seeking a reasonable accommodation. Put procedures in place about what documentation you will require if an employee will seek a reasonable accommodation. Identify what reasonable accommodations your business will be able to offer should the situation arise (such as a remote work arrangement).
We recommend that, before you implement any kind of Covid-19 policy, including a vaccine mandate, you clearly plan and lay out what the policy and procedures will be before forging ahead with implementing the policy. The more you plan and prepare, the better off you will be in terms of being able to handle whatever challenges lie ahead in implementing such a policy. And, if your business is one that employs more than 100 employees, we recommend that you start planning now to the extent that you can so that when OSHA releases its Emergency Temporary Standard, you will be less likely to be racing against whatever deadline is set forth therein.
We will continue to keep you up to date here as the vaccine mandate unfolds and new information is released.
Disclaimer: The information contained in this post is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and communications. Contacting us, however, does not create an attorney-client relationship.
