On September 9, 2021, President Biden announced his administration’s new approach to fighting the coronavirus pandemic. One of the most significant aspects of this plan includes new coronavirus vaccine mandates. These are a significant step up from what President Biden announced back in July.
So what does President Biden’s new plan require and what does it mean for employees? The short answer is that it requires about 100 million American workers to either get the coronavirus vaccine, get tested at least weekly or face disciplinary action (like getting fired).
What Biden’s New Coronavirus Plan Requires of Workers
Biden’s new coronavirus vaccination requirements focus on four main groups of workers and employers.
First, there are private employers with 100 or more employees. They must require their workers to get the coronavirus vaccine or test their employees for the virus at least once a week. Failure to do so could result in significant fines.
Second, most federal employees and federal contractors. About 90% of federal workers will be required to get vaccinated, but this requirement won’t apply to non-executive branch federal employees. And covered government workers will no longer have the option to opt-out of the vaccination requirement by getting regularly tested and social distancing.
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Third, the teachers and staff from various federal education-related programs, such as Head Start, Early Head Start and schools operated by the Bureau of Indian Education and Department of Defense. These workers will have to get the coronavirus vaccine.
Fourth, most health care workers at facilities that receive Medicaid or Medicare reimbursement must get the coronavirus vaccine. It’s estimated this will add up to about 17 million workers.
Workers subject to these requirements are still eligible for religious or medical exemptions as recognized by law.
How These New Vaccine Mandates Will Get Implemented
The Biden administration plans to implement these changes through the use of executive orders (EO) and the rulemaking authority of federal agencies.
On September 9, 2021, President Biden signed two EOs concerning the coronavirus vaccine. One was the “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees” which placed a vaccine mandate on most federal employees. The other was the “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.” This second EO effectively applied the vaccine mandates in the first EO to federal contractors.
The specifics as to how these new requirements will be imposed and enforced have yet to be determined. But the agencies will handle those steps on their own. This includes any negotiations with federal employee unions.
As for agency rulemaking authority, there are at least two agencies at play here. The first is the U.S. Department of Health and Human Services. They will begin the rulemaking process to enforce the new vaccination requirement on Head Start and Early Head Start teachers and staff.
Emergency temporary standards (ETS) are basically federal regulations that can take effect immediately and can stay in effect until a permanent rule is enacted. OSHA’s authorization to create an ETS will apply when there’s a threat to worker safety that poses a grave danger and is due to a toxic substance or new hazard (such as a viral pandemic).
OSHA’s ETS will require all employers with 100 or more employees to either have their employees vaccinated or test their unvaccinated employees at least weekly. These covered employers must also provide employees with paid time off to not only get the vaccine, but stay home to recover from any potentially serious side effects of the vaccine.
It’s not clear when the ETS will be released, but it’s expected within the next few weeks. As for how these requirements will be enforced, that’s also unknown. But at the very least, OSHA will accept complaints from employees who believe their employers aren’t taking the proper steps to ensure their employees are vaccinated or tested weekly. Based on the merits and severity of the complaint, OSHA may begin an investigation which could include a workplace inspection.
And while employees probably won’t have the right to sue their employers for violating the ETS, OSHA can fine employers up to $14,000 per violation
How These New Requirements Could Affect the Workplace Dynamic
President Biden’s new approach to fighting the coronavirus pandemic is controversial and has plenty of opposition. But one of the biggest questions is how businesses will abide by these directives.
Many businesses and companies approve of the idea of a coronavirus vaccine requirement for their workers. Yet they dread the idea of figuring out what to do when employees refuse to comply. This is one reason why these new coronavirus vaccine standards were announced: to give political and legal cover to employers who want to require their employees to get vaccinated.
It’s also a potential lesser-of-two-evils situation. With the majority of Americans supporting mask/vaccine mandates, employers might simply think that requiring the vaccine will upset fewer people than not requiring it. This could be especially important among employers that are having trouble convincing remote workers to come back to the office.
These new vaccination requirements can also shift where people work. Individuals who are against getting vaccinated may start looking for work at smaller companies. This could give workers at larger companies more leverage with their employers. In contrast, those working at smaller businesses could have less room to negotiate the terms of their employment.
There’s also a chance that a few employers will downsize to get under the 100-employee threshold. Finally, employers could see an increase in the number of medical and religious accommodation requests.
The White House has taken a major step in trying to get more people vaccinated. The new rules are pretty much telling about two-thirds of working Americans to get vaccinated “or else.” How the inevitable legal challenges and employee resistance efforts play out remains to be seen.