Biden Mandates Large Employers Require Vaccinations and Provide Vaccine-Related PTO

Alerts / September 13, 2021

On Sept. 10, 2021, the Biden administration announced its plans to mandate that employers with 100 or more employees implement vaccine requirements as a condition of employment. More specifically, the administration has tasked the Occupational Safety and Health Administration (OSHA) with developing an emergency temporary rule that will require these employers to either mandate that their employees become fully vaccinated or require unvaccinated employees to submit to weekly COVID-19 testing. 
While President Biden’s plans are silent as to the effect this mandate will have on workers with sincerely held religious beliefs or medical conditions that conflict with receiving the vaccination, the weekly testing alternative appears to allow employers to continue accommodating such employees in keeping with Title VII and the Americans with Disabilities Act. 
The administration has referenced that violations of this mandate could result in fines of up to $14,000 “per violation,” but it is unclear what behavior will constitute a “violation” (e.g., a failure to implement a vaccine mandate generally or a failure to mandate that a specific individual become vaccinated) or how OSHA will verify that employers have complied with the mandate.
Relatedly, the administration has also tasked OSHA with developing a rule requiring employers with 100 or more employees to provide its employees with paid time off (PTO) to get vaccinated (and to recover from any post-vaccination side effects or sickness). The mandate is silent as to how such time off will be calculated, whether currently implemented PTO policies will suffice to meet this requirement, or what information employers will be able to request from their employees to corroborate related PTO requests.
While the president’s proposed mandate leaves more questions than answers at this point, employers can stand down until further notice.  The vaccine mandates will not take effect until OSHA releases a rule specifically implementing the new requirements, and it is unclear when employers can expect this to happen. To this end, OSHA has yet to release a rule implementing COVID-19-related health and safety standards in non-healthcare settings – despite Biden’s January 2021 call to do so. That said, given that the anticipated vaccine-mandate rule will be an emergency temporary standard, we expect that it will take effect soon after it is released.  
In the meantime, in the coming months before a rule is released, employers are free to continue implementing their own vaccination policies and PTO procedures, making sure to apply these policies equally to all workers and to make accommodations when appropriate and possible under the law.

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