Biden Expands Vaccine Mandate to Include Employers of 100+ Employees, Amongst Others

Sep 13, 2021

On September 9, 2021, President Biden introduced a far-reaching, six-part strategy to combat the continuing spread of COVID-19 across the country. Significantly, the plan will soon require more employers, including all public and private employers with over 100 employees, to ensure all workers are either fully vaccinated or tested weekly. This mandate is expected to impact over 80 million American workers.

.

The United States Occupational Safety and Health Administration (OSHA) will soon release an Emergency Temporary Standard (ETS) codifying this requirement. In the meantime, California employers should begin reevaluating their COVID-19 prevention plans to comply with these impending mandates.

.

Covered Employers and Provisions

.

Although President Biden has encouraged all businesses and entities in the private and public sectors to do their part to encourage vaccination, the federal vaccination verification and/or testing requirements have been expanded to include the following employers and workers:

  • All Employers with 100+ Employees,
  • Federal Workers and Specified Contractors that Do Business with the Federal Government, and
  • Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings

Employers with 100+ employees who are subject to this upcoming vaccination mandate will be required to ensure that their workforce is either fully vaccinated or require any unvaccinated workers to produce a negative test result on at least a weekly basis. These employers must also provide their workers with paid time off to get vaccinated and to recover post-vaccination.

.

President Biden’s plan further encourages, but does not require, entertainment venues (such as sports arenas, large concert halls, and other venues where large groups of people gather) to require that their patrons be vaccinated or show a negative test for entry.

.

Covered employers should monitor OSHA’s website for further guidance on implementing these vaccine verification and testing requirements.

.

Existing Guidance for Implementing Vaccine Verification and Testing Requirements

.

As we noted last week, the California Department of Public Health (CDPH) has issued limited guidance on how organizations in California may implement their own COVID-19 vaccine verification processes.

.

The CDPH has advised the following:

When seeking confirmation of COVID-19 vaccination status, organizations may manually review a paper or digital copy of individual’s COVID-19 Vaccine Record Card or use a SMART Health Card-compatible reader to confirm the information contained in the digital vaccine record, with the individual’s consent.

As part of that process, California recommends that organizations adhere to the following standards and principles for COVID-19 vaccine verification:

  • Records should be verified through a private and confidential process. 
  • Verification should not create or perpetuate social or health inequities or lead to discrimination.
  • Verification should not create barriers to essential services or restrict access based on a protected characteristic. 
  • Workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, should be considered unvaccinated. 

The California Department of Fair Employment and Housing (DFEH) has also released guidance on how employers may comply with the Fair Employment and Housing Act (FEHA), which prohibits workplace harassment, while implementing vaccine verification and other COVID-19 prevention-related policies. Access this guidance here.

.

Resources for California Employers

.

Employers that wish to implement vaccine verification and other COVID-19 prevention-related requirements for their workers, contractors, or other visitors should consult with counsel to develop a clear, written strategy, and, as always, be prepared to adjust to further regulations from local, state, and federal entities. California employers should also stay tuned for anticipated vaccination requirements for visitors of some indoor venues imposed by local jurisdictions.

.

View President Biden’s Path Out of the Pandemic here.

.

View the CDPH’s Guidelines for Implementing a COVID-19 Vaccine Verification Process here.

.

If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.


< See all News / Events