5 ways to get ahead of Biden’s new employer vaccine mandate

With about 100 million American workers included in its broad scope, President Biden’s recent vaccine mandate for large private employers will have vast legal implications for U.S. organizations.

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That was the takeaway from a webinar held this week by the Minneapolis-based law firm Dorsey & Whitney to discuss the topic and provide early guidance for employers. The firm, which has been fielding inquiries from employers about the topic for nearly a year, according to Michael Droke, a senior partner in Dorsey & Whitney’s Labor & Employment group who regularly advises employers on vaccine issues, now is focused on determining which private-sector employers will be affected by the new rules.

Related: 6 experts on what Biden’s vaccine mandate means for HR

The rules are expected to be issued in the coming weeks by the Department of Labor’s Occupational Safety and Health Administration, although a timeline has not been announced.

In addition to questions about the details that have been released—including that federal employees and contractors must be vaccinated with no testing option and that private-sector employers must mandate vaccines or weekly testing—concerns about pandemic-driven shifts in how many employers operate are coming up, said Jillian Kornblatt, a labor and employment partner at Dorsey & Whitney.

“I believe, with remote work, there’s going to be some questions as to what that means for employees who never have in-person contact with co-workers,” she said.

For large private employers, several critical questions remain unanswered, the attorneys said. Those include:

  • How will the government determine whether an employer has more than 100 employees?
  • Who will pay for weekly testing?
  • How will the penalties (announced to be $14,000 per violation) for non-compliance work?
  • What are the “reasonable accommodations” allowed by the Americans with Disabilities Act?
  • How will employee medical information and privacy matters be managed, although, by law, employers can ask for proof of vaccination?
  • What will happen with the showdown bound to happen in some places pitting states’ rights against the executive order?
  • What happens to employees who fail to comply with an employer’s vaccine mandate?

Related: Can employees’ religious beliefs get them out of vaccine mandates?

And although employers with fewer than 100 workers are not currently subject to the rules, it’s possible that as the mandates go into effect, they will become norms, Kornblatt said. And that could mean employers that don’t put them in place will be considered to be violating “common practice,” she says, adding, “I think that’s an interesting area for those specific employers to keep an eye on.”

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As employers and employees await the rules from DOL, the attorneys offered five action steps for employers as they consider and respond to the coming regulations:

  1. Draft a vaccine or testing policy;
  2. Ensure vaccine requirements are in place and include potential exemptions for disability/religious accommodations;
  3. Determine if you’re a federal government contractor or subcontractor;
  4. Employers not currently covered by the new rules (those with under 100 employees, non-government contractors and non-healthcare organizations) should consider what a potential vaccine policy would look like  if/when they are required to enstate one; and
  5. Anticipate changes to new requirements due to COVID-19 itself (Delta, Mu and other variants).

“With each wave [related to the changing COVID variants], we see some effort on the state or federal side to regulate and to require something in regards to employers,” Droke said. “So, the best strategy is to pay close attention and try to anticipate what your company will do for each of those variants.”

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