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Vaccine Mandate Update-October 14, 2021
Private Employers with 100 or More Employees
As we previously reported, President Biden has directed the Department of Labor's Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) that would require all private employers with 100 or more employees to mandate all employees be vaccinated or be tested at the employer’s expense at least once per week. It is anticipated the ETS will require private employers with 100 or more employees to provide paid time off for employees to receive the vaccine and to recover from any side effects of the vaccine.
OSHA sent the proposed ETS to the White House Office of Information and Regulatory Affairs on October 12. The regulatory review process can sometimes take months, but President Biden called for an expedited process for the ETS. We will continue to monitor any action taken to publish the actual ETS.
OSHA’s proposed ETS has not been made available for review, so questions like the following remain:
- How will the 100-employee threshold be counted?
- Will employers be required to collect proof of vaccination?
- What type of testing will be required?
- Will remote employees be covered?
The President has signed an Executive Order requiring all federal contractors (regardless of size) with service contracts and all federal government employees be vaccinated, with no option of being regularly tested.
- The Safer Federal Workforce Task Force has issued revised FAQs that provide employees of federal contractors must be fully vaccinated by December 8, 2021.
- "Fully vaccinated" means two weeks have passed since someone received a single-shot vaccine or the second dose of a two-shot vaccine.
- New hires who start on or after December 8, 2021, must be fully vaccinated when their employment begins.
- Federal contractors must require documentation from employees to prove vaccination, even if an employee has previously attested to their vaccination status.
Vaccine mandates must comply with federal anti-discrimination laws. An employee with a religious objection or disability may need to be accommodated. The FAQs provide that requests for “medical accommodation” or “medical exceptions” should be treated as requests for a disability accommodation.” The task force said the following factors should be considered to determine whether an exception is legally required:
- The basis for the claim.
- The nature of the employee's job responsibilities; and
- The reasonably foreseeable effects on the agency's operations, including protecting other employees and the public from COVID-19.
Unlike accommodation requests in other situations, it appears that if an accommodation to the vaccine mandate is approved, the employee may just continue working as normal.
Health Care Workers
Health care workers at facilities receiving funds from Medicare and Medicaid are also required to be fully vaccinated. A rule from the Centers for Medicare and Medicaid Services (CMS) is anticipated to be released in October 2021.
Executive Orders Issued by State Governors Limiting Private Employers from Mandating Vaccine
Texas Governor Greg Abbott has signed Executive Order No. GA-40 (EO), which prohibits any “entity in Texas” from compelling an employee or consumer to receive a COVID-19 vaccine if that person objects to the vaccination “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” The term “personal conscience” is not defined in the EO and arguably encompasses any personal reason for objecting to receiving the vaccine. Because the EO conflicts with the federal contractor mandate, expect swift legal challenges to the Texas EO (and other state EOs providing for similar directives), including under the Supremacy Clause of the Constitution.
It is SESCO’s current recommendation for those employers (other than federal contractors) who do not wish to mandate vaccines for all employees to “count to ten” before implementing such policy. SESCO will continually monitor developments as to when regulations will be implemented and subsequently the progress of legal challenges.
As we have communicated previously, employers can currently mandate that all employees be vaccinated regardless of the number of employees. Many employers have decided to do so; however, given the current economic and staffing challenges some have made business decisions to not mandate the vaccine.
SESCO Management Consultants will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s COVID-19 Resource Center as additional information becomes available.