Federal Government Enacts Vaccine and Mask Mandates for U.S. Employers; Court Upholds Appeal

UPDATE: CURRENTLY PENDING APPEAL. If enacted, Companies with more than 100 employees will be mandated to require coronavirus vaccinations for their workers or do regular testing by Jan. 4 2022, under the terms of a new federal rule released Thursday Nov 4 by the Biden Administration

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manatory vaccination requirement

Summary:

  • Businesses with over 100 employees must require proof of vaccinations by Jan 4
  • Those businesses must also impose a mask mandate by Dec 4
  • Healthcare companies receiving Medicare or Medicaid must ensure all employees are vaccinated without exception by Jan 4
  • Affected companies must provide paid time off for vaccinations and sick leave for side effects as needed
  • Rule does not apply to remote and outdoor workers
  • Companies with under 100 employees are exempt but a comment period is in effect
  • Employers are not required to either pay for or provide tests
  • The rule will take effect as soon as it’s published in the Federal Register
  • 27 States have sued to block the rule
  • The case will likely be taken up by a single court to make a final rule on the appeal.

 

Update November 13: 

A Louisiana-based federal appeals court on Friday extended the stay to halt the mandate from becoming law. The order from a three-judge panel of the Fifth Circuit Court of Appeals instructs the federal Occupational Safety and Health Administration to “take no steps to implement or enforce” the requirement.
The Fifth Circuit Court of Appeals ruling, however, could be dissolved On Tuesday November 16 when all of the pending challenges against the rule are consolidated into one federal appeals court through a process known as the “multi-circuit lottery.” The names of the circuit courts where there are currently legal challenges to the mandate will be placed in a raffle, and an official will pull out the name of a circuit court, where all the cases will then be transferred.

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Update Nov 7:

A federal appeals court on Saturday Nov 6 temporarily halted the rule. The 5th Circuit, based in New Orleans, said it was delaying the federal vaccine requirement because of potential “grave statutory and constitutional issues” raised by the plaintiffs, per CBS News.

The government must provide an expedited reply to the motion for a permanent injunction Monday, followed by petitioners’ reply on Tuesday.

The administration responded that it is confident that the requirement, which includes penalties of nearly $14,000 per violation, will withstand legal challenges in part because its safety rules pre-empt state laws.

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Original post Nov 4, 2021

The Biden administration on Thursday Nov 4th set Jan. 4 2022 as the deadline for large companies to mandate coronavirus vaccinations or start weekly testing of workers. This mandate is the largest yet for private businesses.

The new rule, applying to companies with 100 or more employees, would affect an estimated 84 million workers. Companies must ensure that their workers are either fully vaccinated against COVID-19 by Jan. 4 or that they test negative for COVID-19 at least once a week. The rule will take effect as soon as it’s published in the Federal Register.

The chief law enforcement officials for Kentucky, Tennessee and Ohio are challenging the Biden administration’s mandate on behalf of 19 states. Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming, Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia have filed suits to block the rule form going into effect in their states. These lawsuits request a judge to stop the implementation of the mandate.

The Republican attorneys general in these three states said they filed their lawsuit against the federal government Thursday — just hours after the White House rolled out new rules covering more than 100 million workers in the U.S.

In a separate measure that will affect 17 million more workers, nursing homes and other health care facilities that receive Medicare and Medicaid funds must ensure all employees are vaccinated by Jan. 4, with no option for testing.

The president has previously imposed vaccine requirements on federal workers, about four million people, and companies that have federal contracts.

The Biden administration is also considering extending the mandate to smaller companies. The Labor Department said it had opened a 30-day comment period on whether it should extend the rules.

“While I would have much preferred that requirements not become necessary, too many people remain unvaccinated for us to get out of this pandemic for good,” President Biden said in a statement released Thursday. “For our country, the choice is simple: get more people vaccinated, or prolong this pandemic and its impact on our country. The virus will not go away by itself, or because we wish it away: we have to act. Vaccination is the single best pathway out of this pandemic. And while I would have much preferred that requirements not become necessary, too many people remain unvaccinated for us to get out of this pandemic for good. So I instituted requirements – and they are working. They protect our workers.”

The requirements instruct employers to require masks for unvaccinated workers by Dec. 5. Companies must provide paid time off for vaccinations and sick leave for side effects as needed.

The requirement does not apply to remote and outdoor workers.

According to OSHA’s new requirements, workers are considered fully vaccinated if they have received two doses of either the Pfizer-BioNTech or Moderna vaccines, and a single dose of the Johnson & Johnson vaccine.

Companies can verify a worker’s status by requesting either a vaccination card or proof from a medical provider. Alternatively, employees can provide a signed note pledging that they have been vaccinated. OSHA states it will allow exceptions for medical or religious reasons.

Employers are not required to either pay for or provide tests, though some may be required by other local laws or agreements with unions.

Companies that fail to comply are subject to fines. An OSHA penalty is typically $13,653 for every serious violation, but can be up to 10 times that amount if OSHA determines that the violation is willful or repeated.

Per The New York Times, OSHA approaches enforcement in a number of ways: It can target inspections at high-risk industries, or it can inspect workplaces in response to complaints or news reports about unsafe conditions.

Employers must provide information about the total number of fully vaccinated workers to employees or their unions, which the agency believes will aid compliance. Employees and unions can use this information to pressure companies directly, or as part of the basis for a complaint.

If you are a Zenefits customer, we are updating our product in real time to help you enforce these mandates and track vaccination status of employees within the platform.

“Luckily Zenefits, the People Platform, already has the capability to collect, track, and securely store your workforce’s vaccination records. In the coming days, we will be releasing more “how-to’s” so that you can stay in compliance with this COVID mandate. ” Said Danny Speros, Head of People Operations.

A tutorial video will help explain how to easily do this within your Zenefits account.

 

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