On September 9, 2021, President Joseph Biden issued an Executive Order mandating COVID-19 vaccines for all federal workers and won’t allow a testing-out option for those who refuse. They will have 75 days to get the shots or face adverse administrative action. Moreover, the mandate is expected to affect all private-sector entities with federal contracts.
President Biden also announced all employers with 100 or more employees will be required to ensure the workforce is either vaccinated or will be subject to weekly testing. In addition, the U.S. Centers for Medicare and Medical Services (CMS), which doles out billions in federal medical reimbursement, will require that employees in most healthcare settings be vaccinated.
Subject to exceptions for employees with (1) a qualifying disability under the Americans with Disabilities Act (ADA) or (2) a sincerely held religious belief, an employer may lawfully require workers to be vaccinated. In Jacobson v. Massachusetts, the U.S. Supreme Court in 1905 upheld the state’s right to require residents to undergo a mandatory vaccination by enforcing a civil fine against noncompliant individuals. New York’s Public Health Law requires that certain employees, such as healthcare workers and teachers, be vaccinated against designated threats in order to work.
The Equal Employment Opportunity Commission (EEOC) has long held:
- A mandatory vaccination policy isn’t discriminatory, subject to the two exceptions noted above; and
- An employer can lawfully inquire into an employee’s vaccination status and require testing to keep the workplace safe.
Range of Vaccination Policies
New York State, local governments, and private-sector employers have slowly rolled out a smattering of vaccination policies taking two basic forms. In late June 2021, then-Governor Andrew Cuomo ordered all “patient-facing” healthcare providers, including staff at hospitals and long-term care facilities (e.g., nursing homes, adult care, and other congregate care settings) will be required to be vaccinated against COVID-19 by September 27, 2021.
In contrast, Governor Cuomo imposed a different mandate for state transportation workers, including those employed by the Metropolitan Transportation Authority and the Port Authority, to show either proof of vaccination or a negative COVID-19 test (the “test out” option) beginning September 6, 2021. Later, Governor Kathy Hochul ordered all New York teachers to show proof of vaccination or a negative test. Many local governments and private-sector employers have followed the “proof of vaccine or negative test” approach.
On August 2, 2021, New York City Mayor Bill De Blasio issued an Executive Order requiring all newly hired employees to show proof of vaccination as a condition of employment. On August 3, he issued another order requiring that certain indoor businesses, including indoor eateries, gyms, and entertainment centers, to show proof their employees and customers are vaccinated. He promised enforcement through inspections.
Biden COVID-19 Doctrine?
With vaccination rates hovering well below 70 percent and the economic recovery in doubt because of a surge in COVID-19 delta variant infections, President Biden’s administration is eager for anything that will increase the shot rates. He initially ordered members of the military to be vaccinated.
In his September 9 address, President Biden went much further. He announced a six-part plan that includes increasing the vaccination rate and providing access to booster shots, keeping schools open, boosting COVID-19 testing and masking, focusing on economic recovery, and improving medical care for those infected with the virus.
Most private-sector employers will be laser-focused on the mandate to require all employees to be vaccinated (with no “test out” option) if they hold federal contracts or provide healthcare services subject to CMS oversight and the mandate for employers with 100 or more employees to implement a proof-of-vaccination or weekly test-out protocol.
What does change mean?
Given the Executive Order, and barring an injunction, it’s likely all federal workers will be required to be vaccinated. Moreover, private entities that have contracts with the federal government may be required to ensure their employees (and those of their subcontractors) are also vaccinated. The White House has indicated there will be 75-day compliance period and the order will recognize the ADA and religious exemptions.
Importantly, the Executive Order does not apply to:
- Federal grants;
- Contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act;
- Contracts or subcontracts whose value is equal to or less than the “simplified acquisition threshold,” as defined in the Federal Acquisition Regulation (FAR);
- Employees who perform work outside the United States or its outlying areas, as defined in FAR; or
- Subcontracts solely for the “provision of products.”
President Biden announced the Occupational Safety and Health Administration (OSHA) will require all employers with at least 100 employees to ensure their workforce is fully vaccinated or subjected to weekly COVID-19 testing before coming on-site to work. This, of course, will require the agency to develop an Emergency Temporary Standard (ETS). This ETS will also require covered employers to provide employees with paid time off to get vaccinated and recover from any side effects. This mandate could affect some 80 million workers alone.
In addition, President Biden revealed CMS will require most healthcare workers, including those who work in hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, must be vaccinated as a condition of employment. This greatly expands the previous requirement which only affected those that worked in nursing homes. Some 17 million workers may be affected.
What does this mean for employers that aren’t currently affected by the new mandates? Since vaccinations (and masking) can be so divisive, the answer for other employers may depend on state and local government laws and regulations. Many employees are refusing to be vaccinated for a wide array of reasons including doubts about the shots’ long-term effects, a belief they are already immune because of a prior infection, or political differences. The doubts exist among workers regardless of their political party.
In the private sector, which can’t attract enough qualified workers, many employers are unwilling to do anything that may cause their employees to leave. To complicate things, it’s expected that unions may want to grieve or bargain over certain aspects of a vaccination policy, including a true mandatory approach or any aspect of a policy that results in loss of pay or discipline for a failure to comply.
If you are a federal contractor, stay tuned for additional details of President Biden’s Executive Order on mandatory vaccinations with no “test out” option and see how it affects your business. The same is true for any forthcoming CMS regulations affecting the healthcare industry. Barring an injunction, however, be prepared to implement a mandatory vaccination program subject to the ADA and religious-belief exemptions.
For businesses that employ at least 100 workers, be on the lookout for the looming ETS from OSHA. While the vaccine or test-out protocol doesn’t appear as onerous on its face when compared to a mandatory vaccination requirement, the prospect of OSHA enforcement by an unannounced site inspection and audit is daunting. Failure to properly document that all workers are vaccinated or are tested on a weekly basis may have huge implications. Given the expected need for testing and the lack of testing capacity, plan accordingly.
Large employers that are subject to the New York State Health and Essential Rights (HERO) Act may want to review and update their exposure prevention plans if needed. Technical violations of the HERO Act subject the employer to litigation by employees.
Even if you aren’t affected by the Executive Order or the future ETS or CMS regulations, anticipate that New York City or a local government—which may feel emboldened by President Biden’s actions—may now mandate vaccinations by industry or mandate a vaccine or “test out” protocol for smaller employers. Be aware, however, that while some states may require mandatory vaccinations (or masking), other states may actually prohibit such a mandatory policy. The stakes are high. Consult with employment counsel on how to draft an effective and enforceable vaccination policy.