In this Capitol Report:
What’s The Latest on Vaccine Mandates & How Should Employers Respond?
The Colorado Chamber of Commerce this week hosted a webinar with a special guest from the U.S. Chamber to answer all of your questions about the status of the federal vaccination mandates, court proceedings, and steps employers should be taking now to prepare.
Marc Freedman, Vice President of Workplace Policy, Employment Policy Division for the U.S. Chamber of Commerce, emphasized that even though the federal mandate has been temporarily stalled in the courts, businesses should still be prepared in the event that the regulations come back into play. Key points of the discussion are below, and you can watch the webinar in its entirety here.
What are the details and requirements of the federal vaccination mandates?
The details of the mandate were released by the Biden administration last month, which comes in the form of two separate rules from the federal Occupational Safety and Health Administration (OSHA) and the Centers for Medicare and Medicaid Services (CMS).
Under the rules, businesses with 100 or more employees must ensure that their employees are fully vaccinated or test for COVID-19 on a weekly basis.
- Part-time employees are included in this threshold.
- Independent contractors are not included.
- Remote workers are included in the 100 employee threshold, however they are not required to be vaccinated as long as they are 100% remote and do not come in contact with other employees or customers.
- Employers can required employees to cover the cost of weekly COVID-19 tests. Tests can be performed off-site, but they must be observed (not at-home tests).
Employees have a deadline of January 4th, 2022 to be fully vaccinated, and at this time, that does not include the COVID-19 booster shots. Additional information on the mandates can be found in our previous Capitol Report article here.
What types of penalties can employers face for not complying?
When the mandate was first announced, OSHA set the penalties at $14,000 per violation – however it is unclear what qualifies as a “violation” and whether that applies per incident/employee or as a whole.
However, in the Biden Administration’s “Build Back Better” budget proposal currently under consideration by Congress, those OSHA penalties would increase significantly – at $70,000 per violation, with penalties in other categories increasing up to $700,000.
Has this mandate been overturned by the Courts?
After the mandate was announced, an array of legal challenges were brought across the nation by employer groups and attorneys general. The first decision occurred in the 5th Circuit which stayed the regulation, meaning the rule is paused and cannot go into effect while the rest of the litigation is taking place.
The 6th Circuit will review the 5th Circuits decision, however, legal observers believe this case will ultimately end up before the U.S. Supreme Court.
What does this mean for employers?
It’s prudent that employers be prepared in case the mandate comes back into effect and put themselves in a position to be in compliance with the rules. Steps that can be taken are:
- Surveying employees to determine who is and isn’t vaccinated – and ensuring all unvaccinated employees are masked in the workplace.
- Develop a written program to have in place in the event that the mandate is upheld.
- Determine how to prepare for the volume of employee requests for religious accommodations to the mandate. This issue is covered by the EEOC which has a helpful FAQ page on the issue.
It should also be noted that currently, there is nothing preventing employers from putting in place their vaccination requirements, regardless of the federal mandate. In the absence of the OSHA rule, businesses can still craft their own policies on vaccinations, paid leave, recovery and testing.