After President Biden discussed the private employer requirement of his COVID-19 Action Plan, the “Path out of the Pandemic Plan,” on September 9, 2021, many private employers were left with questions that we will attempt to answer here:  

Are private employers subject to a mandate now as a result of the President’s COVID-19 Action Plan?

No. Private employers are not subject to a mandate at this time as a result of the President’s announcement on September 9, 2021 as there is no rule or standard in place at this time applicable to the President’s COVID-19 Action Plan that applies to private employers. The COVID-19 Action Plan applies to federal employees and federal contractors only.

Can the President mandate that private employers require their employees to get the COVID-19 vaccination?

No. The President cannot directly mandate that private employers vaccinate their employees or require their employees to provide a negative COVID-19 test weekly in lieu of vaccination. However, the President can direct a federal agency to issue this standard or regulation.  In fact, President Biden referenced an anticipated rule from the Occupational Safety and Hazard Administration (OSHA) that will require employers who employ 100 or more employees to mandate that their employees provide proof of COVID-19 vaccination or a weekly negative test.

(The President does have direct authority to require that federal employees and federal contractors be vaccinated against COVID-19 or provide weekly proof of a negative COVID-19 test).

Does OSHA have the authority to issue a mandate that private employers either ensure their employees are vaccinated against COVID-19 or require those unvaccinated to produce a negative test weekly?

Yes, as long as the mandate is within the authority Congress granted OSHA. OSHA was created by an act of Congress that enabled OSHA to issue rules, known as standards, to employers to keep employees and workplaces safe. The standards have the force of a regulation so that OSHA can issue citations against employers for violating the standards.

Will private employers be required to pay for vaccinations or the COVID-19 tests?

It is unclear. Generally, when an employer  mandates that employees receive  vaccinations (or tests) to perform their duties, the employer covers the costs associated with the vaccinations (or tests) as well as time away from work to take the vaccinations (or tests). However, since a federal agency is expected to issue the vaccination mandate, the federal government may bear, at least, part of the cost. 

What should private employers do now?

Employers employing 100 or more employees should anticipate that OSHA will issue an emergency mandate requiring them to verify every employee is either vaccinated or, if unvaccinated, provide weekly proof of a negative COVID-19 test. The employers should implement processes for receiving proof of vaccinations or negative tests in a manner that is compliant with the confidentiality rules of the Americans with Disabilities Act (ADA).

What should private employers consider when contemplating a  mandatory COVID-19 vaccination policy?

There are many considerations an employer must make before mandating vaccinations, including:

• The ADA and Title VII exceptions for medical or religious accommodations;
• ADA confidentiality requirements;
• whether the employer will have a third-party administer vaccinations or if the employer will offer the vaccinations in-house;
• implicating HIPAA and other privacy concerns and protections; and
• wage and hour issues associated with any such policy.

Employers can contact the attorneys at York Bowman Law, LLC for more information.