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NEW DOL Vaccine Requirements- What We Know Right Now

President Biden yesterday announced a forthcoming executive order regarding vaccinations that will place potentially heavy burdens on employers and affect more than 100 million Americans. Here’s what we know right now- as always, we’ll be following the developments and sharing our insights and best guidance.

How is this going to be implemented?

It is expected that the president will require OSHA to issue a rule requiring employers with 100 or more employees to either make vaccinations mandatory for its employees or require unvaccinated employees to be tested weekly. Presumably, employers who are in violation of the rule will be subject to OSHA fines, which usually start around $14,000.00 per violation.

How long will employers have to implement the rule before being fined?

We don’t know yet, but the administration has said employers will have time to get their employees vaccinated after the rule becomes effective. Many employers that have already required vaccines have given employees between 75-90 days to be vaccinated after the rule becomes effective. I would expect a similar timeframe from OSHA.

Are there exceptions to the vaccine mandate?

There are two exceptions any mandatory vaccine policy must have: 1) an exception for any employee who has a disability that makes that person unable to be vaccinated, and 2) an exception for any employee who has a sincerely held religious belief that prohibits that person from being vaccinated. Employers have some ability to challenge their employees’ use of these exceptions in certain circumstances, but they should also consider the cultural impact of challenging an employee on his or her beliefs, especially in the midst of the current labor shortage.

Who will pay for the tests?

We don’t know for sure, but our working assumption is that it will be the employer’s responsibility to have tests available for the employees and to maintain documentation of the negative test results. Since the employer is permitted to require its employees to get vaccinated, I assume the costs associated with the choice not to do so will be put on the employer.

What should employers do now in preparation for the rule?

Employers should gather data on the percentage of their employees who are currently vaccinated. Employers are indeed free to ask employees about their vaccination status and should be doing that anyway to make sure they are following CDC recommendations regarding quarantining after close contacts. Gathering the data on vaccinated status will help employers determine the cost of not requiring vaccination, in terms of purchasing tests for unvaccinated employees. Employers who choose not to require that their employees get vaccinated will also want to consider how they intend to maintain the records of negative tests for their unvaccinated employees.

Finally, employers need to consider the potential ramifications of requiring the vaccine. Given the tightness of the labor market, it is anticipated that some employees will refuse to get the vaccine and will seek out employers with fewer than 100 employees that are not covered by the rule.

As employers consider their options under the new rule, and as litigation invariably arises to challenge it, we will keep you apprised of developments and offer our best advice on how to implement related practices. 

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