Article written by Kayla McDaniel

President Biden held a press conference Thursday evening where he outlined a series of new policies aimed at curtailing the recent dramatic increase in Covid-19 cases. While the new policies covered a wide variety of changes affecting transportation, education, and healthcare, the main focus was on a new mandate that will require all employers with 100 or more employees to implement mandatory vaccinations for their workers.

Thursday’s press conference appears to mark a decisive shift in this administration’s attitude towards battling the virus. President Biden has already issued an executive order that will make vaccinations mandatory for federal employees, with narrow exceptions for religious or medical reasons. The measure is expected to give employees a 75-day window, after which they may be terminated for noncompliance.

For the private sector, the new policies will cover over 80 million workers and will require employers with more than 100 employees to mandate vaccinations, or otherwise implement at least weekly testing. Qualified employers must also allow employees to take paid time off to get vaccinated, or stay at home if they experience side effects from the shot, although how much time is unclear.

The initiative will be overseen in the coming weeks by the Labor Department’s Occupational Safety and Health Administration (OSHA). The power for such a broad measure comes from the Emergency Temporary Standards (ETS), which may be implemented immediately for up to six months, if “workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards.” However, this authority has rarely been used in the past, and of the nine times that OSHA issued an ETS, the standard was either fully vacated or stayed by the courts in four cases, and partially vacated in one.

Enforcement of the new measures will come in the form of hefty fines of up to $14,000 per violation, although specifics concerning how the mandates will be enforced have not yet been given. The challenge of overseeing enforcement for almost two thirds of the United States’ workforce is likely to present a significant logistical challenge for OSHA.

In his conference, President Biden emphasized that a significant number of prominent employers, such as Disney, Walmart, McDonald’s, and Fox News, have already required vaccinations for much of their workforce. Other employers, like United, are requiring vaccines for all employees. Experts appear divided over the new measures, with some health officials warning that requiring vaccinations for an already deeply divided public could only increase resistance and discontent. Others see it as a necessary step, caused by the continued reluctance of many Americans to take the vaccine. Some private employers view the new measures as a welcome relief, that will allow them to mandate vaccinations without risking alienating their employees. To date, only about 62% of the population is vaccinated, despite widespread availability of vaccines, including the FDA approved Pfizer vaccine.

Already, legal challenges to the measure have been raised, with some arguing that the measures interfere with states’ rights. Previously, only Montana had enacted legislation preventing private employers from mandating vaccinations, but the new policies are likely to increase the number of state governments that enact legislation attempting to counteract the incoming mandates. The Republican National Committee, along with other prominent republicans, like Governor Noem of South Dakota, have promised to sue the administration over the mandates. The main issue is likely to revolve around whether the ETS provide a sufficient statutory basis for the President’s actions in situations of “grave danger.” Even if sufficient statutory foundation exists to support the mandate, there might still be a question whether the President has authority to take such sweeping measures under the Constitution.

OSHA has not yet indicated when the new requirements will go into effect. The actual consequences of President Biden’s new plan will likely take some time to be felt in the workplace, as the standard will almost certainly be the subject of litigation in the near future. Currently, there are no federal laws that prevent private employers from mandating vaccinations for employees, as long as reasonable accommodations are provided. Per the EEOC, private employers are within their rights to require vaccinations from employees, even without the new Covid policies announced by the Biden administration.

If you have any questions about how the new requirements are likely to affect your workplace, please do not hesitate to contact your Cranfill Sumner LLP (CSH Law) attorney.