By: Rachel Selina

In an effort to stop the spread of COVID-19, on September 9, 2021, the Biden Administration issued a series of executive orders implementing a mandatory vaccination plan for all Federal employees and Federal contractors, subject to some exemptions.  This plan also requires all private employers with 100 employees or more to either mandate COVID-19 vaccination or subject employees to mandatory, weekly COVID-19 testing.

As part of this plan, the Occupational Health and Safety Agency (“OSHA”) is developing an Emergency Temporary Standard (“ETS”) for private sector businesses to enforce the vaccination mandate. However, creating the ETS is an intensive process, and OSHA has yet to release this information. Once OSHA releases the ETS though, it will likely take effect quickly, and failure to comply may result in hefty fines for your company.

Employers naturally have many questions pertaining to these executive orders and how they should proceed. However, even without governmental intervention, many large, private employers across the country, such as Goldman Sachs, Deloitte, McDonald’s, Twitter, Tyson Foods, and Delta Airlines, have already implemented some type of vaccination mandate for employees. Regardless of whether your company will be subject to OSHA’s regulations, here are some things to keep in mind in deciding how to handle employee vaccination:

  1. OSHA may answer some remaining questions, but it won’t be able to answer all of them.

In light of the Biden Administration’s executive orders, employers are left with many questions. Some of these questions involve how employees would be counted, how long employers would have to comply with the ETS regulations, how testing for unvaccinated employees should be paid for, and how employers should deal with employee non-compliance, among other things.

OSHA will likely clarify major questions like how employers should determine whether they have 100 employees. That is, it will likely clarify whether part-time, seasonal, temporary, or contracted employees should be included in the calculation of that threshold. OSHA will also likely clarify when the ETS will go into effect. With respect to more minute details, OSHA may leave these determinations up to employers. It is presently unclear exactly what information will be provided in OSHA’s ETS, but the best course of action for many employers is to start making a company vaccination policy, if you have not already.

  1. Make a plan and communicate it to your employees.

Private sector vaccination mandates will likely leave vaccinated and unvaccinated employees with many questions. It will be important for employers to communicate plans and policies, including any changes, to employees early and often. Whether you will be subject to OSHA regulations, or your company is choosing to implement a vaccine policy on its own, start thinking about how to address the following questions:

  • Will you implement a vaccination-only policy rather than allowing for weekly testing as an alternative to vaccination?
  • How will you collect employee vaccination data?
  • How will you protect employee privacy?
  • If you allow for weekly testing, how will it be implemented, and who will bear the cost?
  • How will you collect and review accommodation requests for those who refuse to be vaccinated?
  • Will you impose the same policy for remote vs. hybrid or in-person workers?
  • Are you prepared to handle employee concerns about the policy?

Note that all of the answers to these questions may change after OSHA releases its ETS, but it does not hurt to be prepared.

  1. Vaccination mandate litigation is possible.

Vaccination mandates have been frequent throughout American history, but so has been backlash and litigation in response to these mandates. Over 100 years ago, the Supreme Court of the United States held vaccine mandates to be constitutional in Jacobson v. Massachusetts. Still, this issue has evolved over time and is complicated by state politics and other federal legislation.

The current Supreme Court of the United States has already declined to hear multiple cases attempting to challenge COVID-19 vaccination mandates. As it stands now, any challenges to employer vaccination mandates will not likely be successful. Nonetheless, litigation can be costly, so it is important to minimize your company’s risk by complying with state and federal law.

Perhaps most importantly, the Biden Administration’s executive orders do not impose an absolute vaccination mandate. That is, even if an employer mandates a vaccination-only policy, it must still provide reasonable accommodations for eligible, unvaccinated employees to perform their job duties, absent undue hardship to the company or a direct threat to the health and safety of others. In addition, employees opposed to vaccination based on sincerely held religious beliefs may receive an accommodation, absent undue hardship to the company.

Though vaccination mandates are constitutional, their appropriate implementation can be complicated. No matter the size of your company, Berry Moorman’s Labor and Employment and Health Care Law Groups can help to minimize your risk and navigate the constantly changing landscape of COVID-19 vaccination mandates.