In the time we last spoke about COVID-19 and employer vaccine mandates (we try to give you a break every once in a while), much has happened in the fight against COVID-19 and its variants. With one vaccine having been approved by the FDA, the worries about employers not being able to mandate employee vaccination are minimized, and many organizations have moved forward with requiring vaccination.
However, in response to another rise in the number of infections across the country, the White House announced yesterday that it was developing rules for vaccination for employers across the country. Here’s a summary of what we know so far.
The administration stated that OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is either fully vaccinated or employees are producing proof that they are negative for COVID-19 on a weekly basis. Based on the announcement, the rule will only affect private sector businesses.
Second, federal workers and employees of federal contractors will be required to ensure their employees are vaccinated. As opposed to the private large businesses, there is no negative testing alternative to the vaccination requirement for these employees.
Third, all health care workers at Medicare and Medicaid participating hospitals and other regulated settings, as well as staff in non-patient-contact positions and volunteers will be required to be vaccinated. This requirement will cover most health care workers across the country.
Finally, employers are going to be required to provide paid time off for employees who have not yet been vaccinated to get vaccinated or to recover from any post-vaccination symptoms. There is no word on whether those employees who volunteered to get vaccinated months ago will receive any paid time off for their contributions to the nation’s health.
Now, we have not seen any regulations from agencies tasked with creating rules for employers who will be subject to these requirements, and this clearly does not look like the end of the mandates that will be rolled out from this administration. But the President appears to have lost patience with those Americans who have yet to get vaccinated.
We can be sure to see exhaustive litigation over these proposed rules, from both a constitutional and procedural perspective, including from certain lawmakers who have discovered a newfound belief in an individual’s “right to choose” with regard to his or her own medical decisions.
Nothing is set in stone at this point, but we will be sure to keep apprised of any developments as soon as they happen. If you, or your organization need assistance in responding to these proposed, and soon-to-be adopted regulations, contact Wiley Reber Law, for legal advice that works.