U.S. Federal Vaccine Mandates: Here’s What You Need to Know

On November 6, the 5th U.S. Circuit Court of Appeals in New Orleans issued a stay temporarily blocking OSHA's COVID-19 vaccination policy. We will be update this article as more information becomes available.

On September 9, President Biden announced that he was tackling COVID-19 by directing the U.S. Labor Department to require all businesses with 100 or more employees to enforce that their workers are either vaccinated or tested once a week.  Since that time, U.S. businesses have been waiting on OSHA to provide guidance and deadlines, and today—almost 2 months later—companies now know some of the important parameters of the initial edict. 

The background on today's announcement is below, and we encourage you to attend our open meeting on Tuesday, November 9 to crowdsource answers to any questions you may have.

1. The deadline for compliance is January 4, 2022

Companies must ensure that their workers are either fully vaccinated against COVID-19 by January 4 or test negative for COVID-19 at least once a week. This applies to an estimated 84 million workers. Workers must get paid time off to get vaccinated, and employers need to provide sick leave for workers to recover from any side effects. Earlier, Biden ordered all federal workers and contractors to be vaccinated, with no testing option. Federal workers have until November 22, while federal contractors now have until January 4. Workers will be able to ask for exemptions based on medical or religious reasons.

2. Employers don't need to pay for testing

This has been a widely discussed issue, and it can differ state by state and with collective bargaining agreements. However, employers are not required to pay for or provide testing to workers who decline the vaccine. This ruling is clearly aimed at encouraging workers to get vaccinated.

3. Unvaccinated workers must wear masks

While on company premises, the unvaccinated are required to wear masks beginning December 5. Many cities and states have maintained mask requirements for everyone, regardless of vaccination status.

4. Healthcare workers must get vaccinated

Another rule issued by the Centers for Medicare & Medicaid Services requires approximately 17 million healthcare workers to be vaccinated by January 4 as well. However, they are not given the option of weekly testing in lieu of vaccination. The rule covers all employees at around 76,000 health care facilities that receive federal funding from Medicare or Medicaid.

OSHA estimated that the vaccine mandate will save more than 6,500 worker lives and prevent more than 250,000 hospitalizations over the next six months. Given the relatively small number of OSHA inspectors, enforcing these rules will fall to the companies themselves. It is anticipated that OSHA will rely on employee complaints to inspect violations, and employers will face fines of up to $13,653 per serious violation and 10 times that for willful or repeated violations.

OSHA left open the possibility of expanding the requirement to smaller businesses by asking for public comment on whether employers with fewer than 100 employees could handle vaccination or testing programs.

Senior White House officials said the rules preempt conflicting state laws or orders, including those that ban employers from requiring vaccinations, testing, or the wearing of face masks. Despite that sentiment, it is all but guaranteed there will be legal challenges to the mandate from attorneys general in states that oppose vaccination requirements, as evidenced by lawsuits last week from 19 states to stop the federal contractors mandate.