Since the start of the COVID-19 pandemic, efforts to protect American citizens have been relentless, from lockdowns and social distancing initiatives to masking requirements and remote work options. In 2021, many of these efforts continue with the addition of governmental mandates. In particular, the Biden Administration has recently approved a mandatory action requiring some private sector and healthcare employees to be fully vaccinated or subjected to weekly COVID testing by the beginning of 2022.
If you want to know more about the newly proposed mandates and the impact they could have on your practice or business, you’re in the right place. It’s time to take a deep dive into the legislation.
A Rundown on the COVID Mandates
On November 4, 2021, the Biden Administration outlined the details of two new policies aimed at increasing the number of vaccinated citizens (which we’ll get into below). The mandate aimed to curb COVID-19-related hospitalizations and help to ensure that the American workforce complies with COVID safety measures in the workplace, including full vaccination.
The mandates’ requirements are as follows:
1st Mandate: As per the Emergency Temporary Standard (ETS) issued by the US Department of Labor’s OSHA (Occupational Safety and Health Administration), all employees working for private companies with over 100 staff members must show proof of full vaccination or receive weekly COVID-19 testing by January 4, 2022. The ETS applies to 84 million Americans coming from 26 states subject to the Occupational Safety and Health Act of 1970. Employers from 1.9 million private-sector facilities will be required to provide employees with paid time to get vaccinated and to ensure all unvaccinated workers wear a face mask at all times.
2nd Mandate: With regards to Healthcare, the Department of Health and Human Service’s Centers for Medicare & Medicaid Services (CMS) announced that all employees working at facilities supported by Medicare or Medicaid are to be fully vaccinated. This rule covers 17 million health care workers from 76,000 facilities, including nursing homes, hospitals, ambulatory surgical settings, dialysis centers, and home health agencies. Other firms that do business with CMS facilities should also abide by this rule.
The purpose of these new vaccination requirements is to enhance safety within healthcare facilities and minimize the challenges resulting from staff sickness and emergency quarantines. According to a recent report from the White House, mandating vaccinations has increased vaccination rates by more than 20 percent. This has contributed to “a faster and stronger economic recovery” by allowing as many as 5 million American workers back into their organizations and in total safety.
Do the Mandates Apply to You?
It’s easy to discern whether the ETS OSHA mandate applies to your business. If you operate a private business with more than 100 employees, it applies to you.
Now, let’s consider the CMS mandate. The new CMS regulation applies to all employees from clinical and non-clinical facilities. Students, trainees, and volunteers who operate at a covered facility and receive Medicare or Medicaid federal funding are included in the mandate. The mandate also extends to any outside help or vendors that provide services to these facilities under contract or via other arrangements. This means that even if you work offsite for a CMS facility, your employees need to abide by the same requirements outlined in the mandate.
The deadline to receive the final dose of the Pfizer or Moderna vaccine, or the first Johnson & Johnson vaccine, is the same for both CMS employees and those under the OSHA rule: January 4, 2022. Failure to comply with the January 4th deadline could result in a $13,653 fine per violation, which may go up to $700,000 for willful violations.
COVID Vaccine Mandate Pushback
Unsurprisingly, not everyone responded positively to the new Biden mandates. Though over 60% of the country’s population is already fully vaccinated, a substantial portion of the public believes that mandating, or “enforcing”, vaccines is against a citizen’s freedom to choose.
A whopping 27 states joined forces to challenge the Biden administration’s OSHA and CMS vaccine mandates by filing several lawsuits against the 100+ private employee rule. In particular, Mississippi, Texas, Louisiana, Utah, and South Carolina, have filed a lawsuit in the 5th Circuit Court of Appeals, citing the vaccine mandate as a “serious statutory and constitutional issue”. This resulted in a temporary block of the vaccine mandate. There’s yet another lawsuit in the 11th Circuit Court of Appeals involving Florida, Alabama, and Georgia.
What’s interesting about this wave of pushbacks is that President Biden’s own party has taken action to overturn the vaccine-or-test mandate for large businesses. Two Democratic Senators called it unconstitutional and a federal overreach.
Stay Up to Date on the Legislation
In light of the ever-changing policies on COVID-19 prevention and vaccination, it is crucial to stay informed.
If you are unsure of whether the recent Biden mandates affect your state, check out the following resources regularly for up-to-date information.
- Mandatory Employee Vaccines– Coming to A State Near You? | Littler Mendelson P.C.[Last Updated: December 13, 2021]
- Your state’s government website
If you’d like to submit a formal comment on the OSHA ETS COVID Rule, you can do so here. We cannot overstate how important it is for management to put a plan in place to attain mandate compliance. The consequences of non-compliance can be detrimental to the survival of your business. We hope that this article has cleared up some of the intricacies of the new COVID mandate laws and encourages you to take steps now to become compliant and keep your business on solid ground.