January 20, 2022

Volume XII, Number 20

Advertisement
Advertisement

January 20, 2022

Subscribe to Latest Legal News and Analysis

January 19, 2022

Subscribe to Latest Legal News and Analysis

January 18, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

President Biden Mandates COVID-19 Vaccinations: Stay Tuned…

On September 9, 2021, President Biden unveiled a COVID-19 Action Plan that requires, among other things, millions of private-sector employees, health care workers, federal employees, and employees of federal contractors to be vaccinated against COVID-19. The announcement resulted in a political firestorm, leaving many employers wondering how new rules might affect both them and their employees.

Announcement. President Biden mandated that employees working (1) within the executive branch of the federal government, (2) for employers with 100 or more employees, (3) at health care facilities that receive funds from the Medicare or Medicaid reimbursement program, and (4) for federal contractors, be vaccinated against COVID-19. Employers with over 100 employees are given the option to ensure their workforce is fully vaccinated or require testing on at least a weekly basis.

Employers of over 100. President Biden charged the Occupational Safety and Health Administration (OSHA) with responsibility for issuing an emergency temporary standard related to businesses with 100 or more employees. Specifically what OSHA might order is yet to be seen, but mandatory vaccination or regular testing on at least a weekly basis, plus paid time off to get vaccinated and to recover from any side effects, will be included. Penalties of $14,000 per violation are also anticipated.

There will likely be legal challenges regarding OSHA’s authority to issue such standards under current circumstances. To prevail, OSHA must prove that workers are exposed to a grave danger and the standards are necessary to address that danger. Any emergency standard must also be feasible for employers to enforce.

Good news for employers seeking consistency may be that any OSHA standard would pre-empt existing rules by state and local governments, except in states with their own OSHA-approved workplace agencies (https://www.osha.gov/stateplans). Those states would have 30 days to adopt a standard that is (1) at least as effective as the OSHA standard, and (2) covers state and local government employees not covered by OSHA.

Health care employees. President Biden’s Action Plan provides that the Centers for Medicare & Medicaid Services (CMS) will expand the vaccination requirement it issued for nursing home staff to other health care settings that receive Medicare and Medicaid reimbursement, including but not limited to hospitals, home-health agencies, ambulatory surgical settings, and dialysis centers.

Education employees. The Department of Health and Human Services will require vaccinations in Head Start Programs, and schools run by the Department of Defense and Bureau of Indian Education, affecting about 300,000 employees.

Federal employees. President Biden’s Action Plan requires all Federal employees to be vaccinated, with exceptions only as required by law (such exceptions include exemptions for employees with religious or medical reasons for avoiding vaccination). Federal employees who do not qualify for such exemptions but nonetheless refuse to be vaccinated will be counseled and disciplined, up to and including potential termination of employment. President Biden also signed an Executive Order directing that the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health extend this standard to employees of contractors that do business with the federal government.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XI, Number 253
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Denise K. Drake, Polsinelli, Workplace Lawsuits Attorney, multi-defendant employment actions lawyer
Shareholder

Denise Drake is known for her creative and practical approach to employment law issues, as well as her sincere interest in helping employers improve their workplaces, proactively avoid litigation, and strategically defend against lawsuits. Denise has significant experience defending companies in employment lawsuits, including collective, class, multi-plaintiff, and multi-defendant employment actions. She has obtained defense verdicts in trials and arbitrations involving:

  • Sexual harassment claims

  • Sex...

816.360.4357
Lilian Doan Davis, Polsinelli PC, Public Corporation Liabilities Lawyer, Whistleblower Claims Attorney
Associate

Lilian Davis helps private and public corporations, individuals, and municipalities identify and address potential liabilities. She brings a passion for the practice of employment law and a genuine interest in developing a strong relationship with her clients while gaining a thorough understanding of their business. Lilian understands the ongoing issues facing employers from a variety of perspectives. She counsels clients on management, compliance, and regulatory issues and investigates and responds to charges of employment discrimination. Her practice includes...

314.622.6669
Advertisement
Advertisement
Advertisement