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President Biden’s announcement that the Labor Department will implement a COVID-19 vaccine mandate has sent shockwaves rippling through the country. In particular, the plan calls for employers with 100 or more employees to require full vaccination or undergo weekly testing. Conservative politicians balked at the notion of a vaccine mandate while many employers pondered how to enforce the mandate and the rapid testing program it would require
Biden’s vaccine mandate is simple in principle. It will require vaccination for private companies with 100 or more employees. The order also applies to federal employees, contractors, subcontractors and employers accepting Medicare or Medicaid funds.
But the particulars of the plan aren’t yet clear, according to a webinar from the Minneapolis-headquartered law firm Dorsey & Whitney.
One question is how to count employees. “For example, do part-time employees count? Do seasonal employees count?” asked Katie Ervin Carlson, a senior attorney at Dorsey. “Or what if an employer has employees in multiple states. Do you add them together?”
More details could come via an update to Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard designed to protect employees from COVID-19 exposure.
It is also currently not clear if the mandate will apply to employers of private companies who work 100% remotely. “There’s going to be some questions as to what [the mandate] means for people who never come into contact in person with coworkers,” said Jillian Kornblatt, a partner in Dorsey’s Labor & Employment group.
There is also the question of whether companies not covered by the mandate are in the clear. “A lot does depend on what is acceptable workplace safety standards, and as these mandates go into effect, I do wonder if they will become such norms that small employers who aren’t contractors or healthcare employers who don’t put them into place will be considered not following common practice,” Kornblatt said. “So I think that’s an interesting area for those employers to keep an eye on.”
Another question is how the mandate will apply in healthcare settings. The language in the plan currently says the mandate will apply to “most healthcare settings.” “The plan says that includes but is not limited to hospitals, dialysis facilities, ambulatory surgical settings and home health,” Carlson said. “That’s kind of a broad description.” It is presently not clear, for instance, if the mandate would apply to dentists or optometrists. But once the final regulations come out, “we could see it there,” Carlson concluded.
Finally, for employees opting to undergo weekly testing instead of vaccination, there is the question of who will pay for that. Employers should figure out what types of testing their insurance plan will cover and “what percentage of your employees are on your insurance plan versus having coverage elsewhere,” Kornblatt said. “What are you going to do about the test results?”
“Think about who was going to collect these test results every week,” Kornblatt said. “That’s a lot of data for a lot of people.” In addition, such data will need to be kept separately from other employment records.
According to Kornblatt, some private employers may aim to simplify matters by simply requiring vaccination as a term of employment.