President Biden Announces New Rule Mandating Employee Vaccines or Weekly Testing For All Employers with 100+ Employees and Other Employees

By Heather J. Van Meter - Bullard Law

September 9, 2021

Attempting to address the ongoing COVID-19 pandemic and spike in cases and hospitalizations nationwide, President Biden announced major new efforts to require vaccinations among workers nationwide on September 9th. President Biden has directed the Occupational Safety and Health Administration (OSHA) to issue a new temporary emergency nationwide rule requiring vaccinations or weekly negative testing for all employees working for private employers with 100 or more employees. The new OSHA rule is expected to be issued in the next two weeks. Compliance is expected to be required around November 23, 2021. Penalties of up to $14,000 per violation may be imposed. Private employers with 100 or more employees (not per worksite but total) will be required to comply.

Additional mandatory vaccination or weekly testing requirements apply to healthcare workers, federal contractors and employees, and federally-funded school teachers.

Who will pay for the vaccines or weekly testing?

President Biden did not address who will pay for the vaccinations or weekly testing and did not address whether new federal funds would be made available to cover these costs. Oregon and Washington have statutes and rules applicable to worker testing situations; contact Bullard Law for more information.

Do we have to pay workers for the time for vaccinations or weekly testing?

It is anticipated that OSHA’s rule will mandate that employers give employees paid time off to get vaccinated and to recover from vaccination side effects. Although federal funds were previously available for vaccination for some employers, it is unclear whether additional federal funds will be available to employers to cover the mandatory paid time off.

No mention was made regarding mandatory paid time off for employee weekly testing.

Oregon and Washington have statutes and rules that may be applicable to paying workers for vaccinations or weekly testing; contact Bullard Law for more information.

Do we have to offer religious or medical/disability exceptions?

Likely yes, to comply with civil rights and disability laws, although the parameters are not presently known. It is anticipated the OSHA rule will address religious and medical/disability exceptions to mandatory vaccinations. Although Oregon Health Authority previously created a form for employees seeking such exceptions, it is unclear if OSHA will create its own forms and whether any OSHA forms or standards will supersede the Oregon Health Authority forms and processes. It is anticipated that mandatory weekly testing will still be required for those seeking religious or medical/disability exceptions to vaccination. However, some employees may attempt to seek exceptions to weekly testing as well.

Who else does mandatory vaccination or weekly testing apply to?

In addition to employers with 100 or more employees, President Biden either previously or today announced mandatory vaccination or weekly testing for federal contractors, federal employees, healthcare workers and hospitals that receive Medicare/Medicaid funding, teachers at Head Start, and other federally funded schools.

What issues remain?

Many questions remain unanswered. The new mandate may have a negative impact on existing labor shortages. Presently, there is a shortage of at-home test kits, making drive-thru or other testing sites and proximity to them an issue. It is unclear whether proof of vaccination or attestation will be required. Employers will need to keep vaccination proof or attestation separate from other personnel files and confidential.

Bullard Law has been working with employers on vaccine mandate issues for many weeks, don’t hesitate to reach out with any questions.