Mandatory Vaccination Rules Issued for Large Employers and Healthcare Workers

By Skoler, Abbott & Presser, P.C.

November 4, 2021

Today, the Biden Administration rolled out two far-reaching COVID-19 vaccine mandates that apply to U.S. employers with 100 or more employees and all healthcare facilities (regardless of size) participating in Medicare or Medicaid.  Our attorneys are in the process of reviewing both rules in detail so we can provide as much relevant information as possible to our clients.  Here is what we know so far (with more information to come courtesy of out The Law @ Work blog):

Employers with 100+ Employees:  The Occupational Health and Safety Administration (“OSHA”) will require private employers with 100 or more employees to develop and implement a policy mandating all employees be fully vaccinated by January 4, 2022, unless the vaccine is medical contraindicated for the employee or the employee’s sincerely-held religious belief keeps the person from becoming vaccinated.  This does not give employers much time to prepare, especially when vaccines in a two-dose series can take several weeks between first and second dose, plus an additional two weeks from final does (in either the single or two-shot series) to be fully vaccinated.  Employers can opt for a policy that allows unvaccinated employees to remain employed if they submit to weekly COVID testing.

Weekly Testing Option:  Employees have the option under the OSHA rule to go unvaccinated if they provide negative COVID test results to their employer on a weekly basis.  Unvaccinated employees who opt for weekly testing will need to wear facemasks in the workplace.  The rule is clear that employers can decide who will pay for testing.  However, with testing being available nationwide at no cost, this is not much of an issue right now. Employees will only have this option if their employer establishes, implements, and enforces a written policy allowing an employee to provide proof of testing, rather than getting vaccinated.

Paid Time Off to Get Vaccinated:  The OSHA standard requires employers to pay employees for the time it takes them to get vaccinated as well as recover from side effects.  It is unclear what, if any, documentation can be requested to corroborate impairing side effects.  Covered employers must make this time available to employees by December 5, 2021.  

Accommodation Requests:  The OSHA standard does not delve into medical or religious accommodation requests, and instead defers to the EEOC guidance on this topic.  Employees with medical or religious accommodations will need to submit to weekly testing, unless that too needs to be accommodated.

Penalties:  Just like other OSHA rules, fines for noncompliance could be almost $14,000 per violation.  If OSHA determines that the employer willfully violated the rule, or gets hit with a repeat violation, the fine could go up to a whopping $136,532 per violation.

Legal Challenges:  The OSHA standard is certain to be challenged in court by a variety of plaintiffs.  Skoler Abbott will keep you updated on any significant developments in these cases as they make their was through the legal system.

Healthcare Workers: The Centers for Medicare & Medicaid Services (“CMS”) also issued a separate rule requiring covered healthcare workers to be vaccinated by the same deadline, January 4, 2022.  Unlike the OSHA rule, there is no option for weekly testing, but medical and religious exemptions must be made available. The rule covers all employees at healthcare facilities that receive federal funding from Medicare or Medicaid, which is approximately 76,000 health care facilities and more than 17 million healthcare workers—the majority of healthcare workers in America.  This includes all workers at covered hospitals, ambulatory surgery centers, dialysis facilities, home health agencies, and long-term care facilities.