What You Need to Know About Federal Employer Vaccine Mandates

Vaccine Mandate graphic

Posted on September 24, 2021

Employees Required to Be Vaccinated or Tested Weekly

Employees and employers across the country are wrestling with the Biden Administration’s COVID-19 vaccine mandates. On September 9, 2021, President Biden announced that employers with more than 100 employees would need to meet strict requirements or face penalties. This means employers must ensure all their workers are vaccinated, or that any unvaccinated employees are tested weekly for COVID-19 and produce negative test results. 

 

The administration is playing hardball with institutions hesitant to start on this phase of their “Path out of the Pandemic ” plan. Penalties include $14,000 fines for employers and withholding federal reimbursements for places like hospitals and nursing homes that don’t follow the vaccine mandate protocols. So what rights do employees have under the law?

 

Additional Rules Under the ETS Affecting Employers

The enforcer for this federal action is the Occupational Safety and Health Administration (OSHA). OSHA is in charge of making sure employers are maintaining a safe workplace by following certain standards. OSHA has the power to fine offenders and is now also being tasked with creating the Emergency Temporary Standard (ETS) to implement a vaccine mandate.  

 

Employers must ensure all their workers are vaccinated, or that any unvaccinated employees are tested weekly for COVID-19 and produce negative test results. Other changes might include:

 

  • Changes to paid-time-off for employees to get the vaccine.
  • If “vaccinated” means a single shot or being current on all boosters.
  • What kinds of COVID tests will be allowed for unvaccinated employees.
  • How accommodation requests will be handled for those with medical, religious, or other objections.
  • And so much more…

 

The Administration has also decided that the 100 employee count will be for each company in total rather than a specific location. That means even if your company only has 10 employees in a location, but 10 locations across the country, your employer will still need to comply with the federal vaccine mandate protocols. 

 

Questionable Process Likely to Fuel Legal Challenges

Getting around the vaccine mandate in the courtroom will most likely need to look at the process used to create OSHA’s ETS responsibility. The question that must be answered will be whether OSHA has the constitutional authority to enforce an ETS of this magnitude nationwide. 

 

State leaders like Florida Governor Ron DeSantis and Georgia’s Mike Kemp are vowing to fight the sweeping mandate. These and others are asking to give employers the right to decide the best route for getting their workforce safely back to work. Mike Kemp even goes so far as to call the employer vaccine mandate an “unlawful overreach”. 

 

While there are exemptions for things like religious beliefs and medical reasons, opponents of the vaccine mandate still face an uphill legal battle. Vaccine mandates in legislation aren’t new in the U.S. In 1809, the federal government instituted the first nationwide smallpox vaccine mandate with basically no exceptions. 

 

With so much hanging in the balance, the circumstances surrounding the federal vaccine mandate are ensuring a legal battle that will probably reach our nation’s highest court. If this happens, the question then will not be if vaccine mandates are legal but whether they will be upheld by the judges. Considering the conservative majority in the Supreme Court, this will be a showdown to watch for employees and employers alike.

 

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