On November 4, 2021, the Biden administration rolled out new employment regulations for the Federal COVID vaccine mandate.
Who is Covered?
The new rules apply to all employers with 100 or more employees, and to all Federal contractors regardless of size.
What is Required?
All covered employers must ensure that their employee population is fully vaccinated no later than January 4, 2022. The policy does permit an alternate, weekly testing option for employees with a qualifying medical condition or sincerely-held religious belief of practice. Employees who do not qualify for the testing option must be vaccinated in order to keep their jobs. No employee is permitted to continue working while they have a verified case of COVID.
Are Employers Required to Permit the Testing Option?
Not necessarily. The regulations identify minimum safety requirements. Consistent with prior guidance from OSHA and the EEOC, employers may still determine that vaccination is required to ensure the health and safety of particular workplaces or jobs, e.g., for jobs where no remote work option is available. Employers are not required to permit unvaccinated employees to work in a physical workspace. Note also that no testing option is available for Federal contractors or employers of health care workers.
What Are the Requirements of the Testing Option?
For employers who elect to permit the testing option for qualified employees, documentation of a negative COVID test result must be provided on at least a weekly basis. Unvaccinated employees must wear masks at all times while working. Importantly, employers are not required to pay for the testing, nor are they required to pay for masks.
What Support is Required for Employee Vaccinations?
COVID vaccinations are now widely available, at no cost. Employers are required to provide up to two hours of paid time off in order to obtain the vaccine, and must provide sick leave as necessary for the employee to recover from vaccine side effects they are experiencing.
Additional Considerations.
While the new regulations do not require compliance by smaller employers, mandatory vaccine policies remain permissible, consistent with common-sense health and safety considerations. Some employers may be subject to additional requirements imposed by local ordinances and/or applicable labor union contracts. The Federal regulations are new, and in large part unprecedented. Novel questions are certain to arise in the course of implementation. When in doubt, always consult with your employment counsel in response to your specific situation.
