Much-Anticipated Nationwide Mandate for COVID-19 Vaccines Arrives

UPDATE: On January 13, 2021, the Supreme Court issued an Order staying this nationwide mandate for employers with 100 or more employees. As as result, the mandate will not become effective and employers will not be required to adopt a policy requiring Covid-19 vaccinations or testing.

This morning, President Biden’s administration announced the details of the nationwide COVID-19 vaccine mandate he promised in early September.

Under this new regulation, large employers (defined to have 100 or more employees) in the private sector and in the public sector of certain states, including Virginia, North Carolina, and Maryland, must require all employees to either (i) get vaccinated or (ii) produce a negative COVID-19 test on a weekly basis. The rule will become effective on November 5, 2021, and employers will need to comply no later than January 4, 2022.

UPDATE: The Fifth Circuit has temporarily blocked this large employer vaccine mandate. While employers may certainly decide to wait for more legal clarity before implementing workplace vaccination requirements, continued planning now will be essential to meeting compliance obligations and deadlines should a mandate go into effect January 4, 2022.

Here are the highlights for employers to prepare for as they implement this new rule:

• Provide paid leave, up to 4 hours, for non-exempt employees to get the vaccine during work hours. This paid leave must be at the employee’s regular rate and cannot be offset by an employee’s available paid leave or sick leave benefits. If an employee gets the vaccine after work hours, no paid leave is required.
• Provide reasonable time off and paid sick leave to recover from vaccine side effects. Paid sick leave benefits can be used to offset these costs, if available.
• Employers do not have to pay for the costs of weekly COVID-19 testing for unvaccinated employees, except if other laws, regulations, or collective bargaining agreements require such payment. It remains uncertain, however, whether Virginia’s wage payment law will require employers to pay for such testing as a “condition of employment.”
• Weekly testing is required, even for employees with religious or medical accommodations from the vaccine. Employers who approve religious or medical exemptions are still expected to require weekly testing.
• Require face masks for unvaccinated workers in the workplace. Those who are not fully vaccinated must wear a face mask when indoors or while in a vehicle with another person for work purposes.  Notably, the regulation does not apply to workers who work remotely or outdoors on an exclusive basis.
• Remove from the workplace all workers, regardless of vaccination status, if they have tested positive for COVID-19. The rule does not require unvaccinated employees to be removed from the workplace if they have had close contact with a COVID-19 positive person; however, the rule encourages employers to have a more robust removal program and to follow the guidelines of the Centers for Disease Control.  Further, the rule does not require employers to provide paid time off for employees removed from the workplace due to testing COVID-19 positive.
• Notify employees of the new rule. Formally known as the “COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS),” employers must provide employees with notification, “in a language and at a literacy level the employee understands” about the ETS, including the employer’s procedures for determining vaccination status, employee rights regarding time off and pay, records requests, and masks.  Employers must also provide information to employees about:
  • The efficacy of the COVID-19 vaccine, by providing them with the following document, “Key Things to Know About COVID-19”;
  • The ETS’s prohibition against discrimination or retaliation related to the rule, described here; and
  • The criminal penalties associated with supplying false statements or documentation, described here.
• Healthcare workers will not have the option to test weekly in lieu of getting vaccinated. Pursuant to additional regulations published today from the Centers for Medicare & Medicaid Services (CMS), the lack of a testing option speaks to the higher standard for healthcare workers and their critical role in ensuring the health and safety of their patients. You can read more about our Firm’s take on the CMS regulations here.

Here's what employers need to do now:

• Establish and implement a written mandatory vaccination policy. Employers who already have policies related to the COVID-19 vaccine should review and revise these policies in compliance with the ETS.
• Determine the vaccination status of employees. Employers will need to begin making inquiries as to each employee’s vaccination status.
• Maintain (and segregate) all medical records. Employers should have a system in place to retain all vaccine and testing records of employees, separate and apart from their personnel files.

News reports indicate that there will be legal challenges to the new rule that, if successful, could block the implementation of this rule.  However, the Biden Administration has emphasized the need for the new rule to bring an end to the global COVID-19 pandemic, which has claimed approximately 725,000 lives in the United States.

The Sands Anderson’s Labor & Employment team stands ready to assist your organization as it adopts policies to implement these new COVID-19 vaccine regulations.