Yesterday, September 9, Biden announced a move to mandate private employers with more than 100 workers to require vaccinations or test for COVID-19 on a weekly basis. California legislators have considered a mandatory vaccination law for employers, but did not pass the law prior to the end of the legislative session. Here are five key items California employers need to know about the upcoming federal mandate proposed by Biden:
1. The mandate would be issued through the Department of Labor’s Occupational Safety and Health Administration (OSHA).
OSHA would develop the rules for employers to comply with, and would have the authority to issue fines against employers who are not in compliance. President Biden said fines could be $14,000 per violation. OSHA will issue an Emergency Temporary Standard (ETS) soon that will set forth the requirements for employers. There is no date yet when the ETS are expected. Biden also signed an executive order requiring all government employees to be vaccinated.
2. What are the requirements for employers under Biden’s vaccine mandate?
Biden announced the mandate on September 9, stating that the mandate will require private employers with 100 or more employees to have their employees vaccinated or require a negative test from unvaccinated employees at least once a week. The ETS will require employers to pay for the time it takes works to receive the vaccination or to recover post-vaccination. For now, this is all we know, and employers will have to wait until the ETS is published by OSHA for the details.
The White House said that there will be “limited exceptions” to the vaccine mandate. According to federal and California state law, employers will need to continue to provide reasonable accommodations for employees with medical issues that prevent them from receiving the vaccination or based upon a sincerely held religious belief.
As employers who have already mandated vaccinations in the workplace are finding, dealing with requests for reasonable accommodations can be tricky, especially for employees who are asking for a reasonable accommodation based upon a sincerely held religious belief. Hopefully OSHA’s ETS will set forth a clear path for employers on how to document and deal with these type of accommodation requests. If the ETS does not provide this clarity, it would unfortunately continue to place employers in a difficult position of facing fines for non-compliance with the ETS, or facing civil lawsuits from employees claiming disability or religious discrimination.
3. California’s vaccine mandates.
California lawmakers considered a potential bill requiring COVID-19 vaccinations on a state level for anyone to enter an indoor business establishment and to have workers vaccinated, but ultimately did not pass any mandate before the end of the legislative session.
California does have mandates for teachers and school staff, and for certain health care workers who must be vaccinated by September 30, 2021.
California requires all workers who provide services or work in heath care facilities set forth below to have their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021:
- General Acute Care Hospitals
- Skilled Nursing Facilities (including Subacute Facilities)
- Intermediate Care Facilities
- Acute Psychiatric Hospitals
- Adult Day Health Care Centers
- Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
- Ambulatory Surgery Centers
- Chemical Dependency Recovery Hospitals
- Clinics & Doctor Offices (including behavioral health, surgical)
- Congregate Living Health Facilities
- Dialysis Centers
- Hospice Facilities
- Pediatric Day Health and Respite Care Facilities
- Residential Substance Use Treatment and Mental Health Treatment Facilities
Additionally, Cal/OSHA’s own ETS requires weekly testing of unvaccinated employees whenever a workplace experiences a COVID-19 outbreak, defined as three or more cases within a 14-day period.
4. Employers must start considering how to implement mandatory vaccines.
California employers will need to continue to navigate the patchwork of federal, state, and local laws regarding vaccinations. Now with this impending federal requirement from the Biden administration, employers with 100 or more employees need to start preparing on how to comply with the new requirement. We have developed a checklist of seven items that California employers can use to start the process of requiring mandatory vaccinations, which is available here.
5. Legal challenges to Biden’s mandatory vaccination requirement.
Republican governors have already stated that they will be mounting a legal challenge to Biden’s vaccine mandate. There are likely other groups that will challenge the mandate also. However, the legal challenges will likely take some time to be resolved. Until the OSHA ETS are ruled by a court to be invalid in some manner, employers will need to ensure compliance with the new regulations.