Vaccines, Vaccines, Vaccines

The post below is worth leaving up to show how much changes so quickly in the works of COVID laws.  Six months ago seems like ancient history.  Here, then,  is what we said in the early fall of 2021, correctly predicting that litigation would likely shift the field.  But, as emphasized earlier, it remains important to support vaccinations at work, to promote COVID education, and to keep tabs on the circulation of the virus.  Still.  Even though we are tired of it.

Less than 48 hours ago, the President turbo-charged vaccine mandates at work.  Already everyone wants to know what it will mean.  We have answers, to the extent they exist yet.

But first, if you  want a glimpse into your new reality, talk to HR leaders in the healthcare field.  Almost all of them took steps over the past month or so to put mandates in place, and they have stories to tell!  

For employers, President Biden did primarily two things: (1) beginning October 15 if you become a contractor (including a subcontractor of any tier) on a federal project, you will have to abide by a contract provision that, roughly speaking, will require your employees to be vaccinated; and (2) if you have at least 100 employees, you will have to comply with OSHA workplace safety standards that will require employee vaccinations or weekly negative COVID tests.

That’s it.  That’s basically all of the answers there are.  The President gave a classic policy announcement that must be fleshed out by agency action to know what it really means in the trenches.

Oh, and Republican governors intend to sue him.  And, anti-vaccination advocates intend to sue unlucky employer-targets that deny accommodations under the ADA for disabilities and under Title VII for religion.   Perhaps a federal judge will impose an injunction to stop these Executive-branch options.  Perhaps a different federal judge will offer some clarity around accommodations.

For now, though, we wait.  A group called the Safer Federal Workforce Task Force will develop the details of what federal contractors must agree to do around vaccines.  At the same time, OSHA and the DOL will develop the workplace safety rules that should help define the obligations of those with 100+ employees.

What can employers do in the meantime?  Pump out education to employees about the safety and efficacy of the vaccine.  (Not everyone has firmly decided their stance on vaccines, believe it or not.)  Brush up on the laws and best practices around accommodating requests for exceptions due to disability or religion. Think ahead about how to administer a vaccine or weekly-testing program–start by making a list of all the questions you have.  No question is a bad one. 

And, remember, major undertakings like this one always go more smoothly if you call your favorite employment lawyers.