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Biden vaccine mandates will hit after holiday season, offering relief to businesses

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The announcement follows weeks of pressure from business leaders who complained the rules would wreak havoc on the supply chain and possibly aggravate worker shortages.

The Biden administration’s forthcoming vaccine mandates for millions of private employers, certain health care workers and federal contractors will not be enforced until after the holiday season, following weeks of pressure from business leaders who complained the rules would wreak havoc on the supply chain and aggravate worker shortages.

The administration released two new rules on Thursday that will be enforced starting Jan. 4 — one setting up new vaccination-or-test requirements for businesses with more than 100 workers and another implementing a vaccine mandate for health care workers at facilities participating in Medicare and Medicaid. Together, the rules are expected to affect over 1 million workers.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” Labor Secretary Marty Walsh said. “Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”

Officials also said the administration is pushing back the Dec. 8 deadline for federal contractors to ensure their workers are fully vaccinated, so that all three mandates will go into force on Jan. 4.

While employers were given a brief reprieve from immediately implementing the test piece of the rule, the administration clarified that businesses must be in compliance on Dec. 5 with all other requirements, such as providing paid time off for employees to get vaccinated and requiring unvaccinated workers to wear a mask in the workplace.

Under the rules, workers at private businesses with more than 100 employees will have the option to wear a mask at work and submit to weekly Covid-19 testing in lieu of getting vaccinated. Health care workers and government contractors do not have the testing option.

Unvaccinated workers who claim they have a legally protected exception to getting the vaccine could be fired if their employer says it would be an “undue hardship” to offer remote work or some other accommodation.

Companies that fail to follow the vaccine-or-test rules can be fined up to $14,000 per infraction.

The temporary rules for private employers go into effect immediately and stay in place for six months, but can be directly challenged in the U.S. Court of Appeals.

Private employers will not be required to pay for weekly Covid-19 tests for employees who refuse to get vaccinated, according to the new emergency temporary standard released by the Labor Department on Thursday. Whether insurers will cover the cost of testing for unvaccinated workers is up to individual insurance plans, according to Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick.

Private employers subject to the emergency standard must also provide paid time off for workers to receive and recover from the Covid-19 vaccine, according to the rule.

Senior administration officials told reporters Wednesday that the vaccine-or-test requirement for private businesses alone “will protect more than 84 million workers from the spread of the Coronavirus” on the job and estimate that it will prevent over 250,000 hospitalizations.

The requirements, which President Joe Biden announced in September as part of his latest campaign to combat Covid-19, have already ignited a legal battle with conservative states and businesses over the government’s authority to impose such directives.

Shortly after the emergency rule for private businesses was announced, the Job Creators Network, a small business advocacy group, filed a lawsuit on behalf of several businesses in federal appeals court seeking to block the requirements from going into effect, arguing that the Occupational Safety and Health Administration doesn’t have the authority to issue the rule.

“The Biden Administration’s vaccine mandate is clearly illegal and will have a devastating impact on our small business community and our entire economy,” said Alfredo Ortiz, president and CEO of the group, in a statement on the lawsuit.

“The Administration’s mandate will exacerbate the worst labor shortage in recorded history by requiring small business owners to terminate some employees who wish not to get vaccinated while also shrinking the pool of job applicants available for hiring,” he said.

Nineteen states, including Florida and Texas, sued the Biden administration last month over the vaccine mandate for federal contractors, arguing the requirement was an unlawful overreach. And 24 state attorneys general and various business groups have warned the administration that it would face legal challenges if it moved forward with the vaccine-or-test rules for private employers.

Some Republican governors, including Florida’s Ron DeSantis and Alabama’s Kay Ivey, have tried to preemptively block private businesses from imposing mandates of any kind via executive order, although legal experts and the administration say those state rules are preempted by the new federal requirements.

“I expect to see battle royale in Texas, in Florida or anywhere else that wants to try to stop these” rules, David Miller of Bryant Miller Olive P.A., said. States are likely to argue the federal mandate violates the First Amendment, as applied to states through the 14th Amendment, Miller said.

“I really think that’s where it’s finally going to come to the nub in front of the U.S. Supreme Court. That’s the only way this is getting settled,” he added.

The administration’s move to delay the federal contractor mandate comes after trade groups, businesses and Republicans complained that the requirements will force employers to fire workers who refuse to get the vaccine or lead to mass resignations among workers who don’t want to comply, leading to more disruption in the labor market and the supply chain ahead of the crucial holiday season.

“In response to similar state and federal mandates, many private companies have begun firing workers who refuse the Covid-19 vaccine,” said Rep. Russ Fulcher (R-Idaho), during a labor subcommittee hearing on the mandate for private employers last month. “This federal vaccine mandate will worsen the supply chain crisis, almost guaranteeing Americans will go without this Christmas.”

But Biden brushed off those concerns Thursday, arguing that vaccination requirements are popular and also good for the economy.

“As we’ve seen with businesses – large and small – across all sectors of our economy, the overwhelming majority of Americans choose to get vaccinated,” Biden said in a statement on the new rules. “There have been no ‘mass firings’ and worker shortages because of vaccination requirements. Despite what some predicted and falsely assert, vaccination requirements have broad public support.”

Unions, labor advocates, health officials and even some businesses have lauded the effort from the administration, calling the vaccine-or-test rules for private companies long overdue and finally unifying a state-by-state patchwork of requirements.

“One of the biggest struggles of the last two years is that we are dealing with an ever-changing patchwork of health and safety regulations that, in many cases, have differed not just state to state, but county by county,” Richelle Luther, chief human resources officer at Columbia Sportswear Company, told lawmakers during a hearing in October.

“A federal mandate is needed,” she added. “We do not believe it is more regulation for business, but rather, less. A quilt of local laws and approaches created vastly more regulation of business, more uncertainty, risk and inefficiency.”

Some economists predict the federal vaccine mandates could have a positive effect on the labor force. Goldman Sachs analysts wrote in September that “an increase in vaccination and almost full vaccination at workplaces should encourage many of the 5 [million] workers that have left the labor force since the start of the pandemic to return.”

The Equal Employment Opportunity Commission, which is the federal agency that polices employment discrimination, has given employers the greenlight to mandate Covid-19 vaccination in their workplace, so long as they provide accommodations for workers who say they can’t get the shot because of their religious beliefs or a disability.

Last month, the EEOC clarified that “social, political, or personal preferences” are not considered protected religious beliefs under federal anti-discrimination law.

The Occupational Safety and Health Administration, the federal agency tasked with policing worker safety, has the authority to issue emergency temporary safety rules that go into effect immediately if it determines that workers are “in grave danger” due to exposure to something “determined to be toxic or physically harmful or to new hazards.”

Emergency temporary standards are rarely issued by OSHA. Before an emergency Covid-19 workplace safety rule went into place for health care workers earlier this year, the agency hadn’t released an emergency standard since the 1980s.

OSHA has issued 10 emergency temporary standards in its five-decade history. Of those, at least five were stayed or blocked by the courts, according to the Congressional Research Service.

This blog originally appeared at Politico on November 4, 2021. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter.


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