Path out of the Pandemic Action Plan: Expanded COVID-19 Vaccine Requirements for Employers with 100+ Workers


On Thursday, September 9, 2021, President Biden announced new COVID-19 vaccine requirements that are expected to affect two-thirds of all U.S. workers. The effort is in response to the spread and impact of the highly contagious COVID-19 delta variant and is part of a larger White House action plan at combatting the pandemic. Here is what is known so far about this federal mandate and how it affects employers and their employees.

Employers with 100+ Workers: Vaccine or Testing Option
The Department of Labor’s Occupational Safety and Health Administration (OSHA) has been tasked with developing a rule aimed at private sector employers with 100 or more employees. The rule will require that employees either be: 1) fully vaccinated, or 2) produce a negative COVID-19 test result before coming to work at least once a week.

According to the CDC, a person is fully vaccinated if they are at least two weeks past their second dose of the Pfizer-BioNTech or Moderna shot. Alternatively, a person is vaccinated if it has been two weeks since their single Johnson & Johnson shot.

An OSHA-issued Emergency Temporary Standard (ETS) will be used to implement the requirements. The standard will also mandate employers provide employees paid time off to get the vaccine and recover from any side effects. Employers that fail to comply with the mandate or time-off requirements likely could expect fines for violations.

Federal Employee & Contractors: Vaccine Required
President Biden signed two executive orders requiring that all federal executive branch employees and contractors get vaccinated against COVID-19. Those covered by the mandate will have 75 days to get the vaccine. Limited, legally recognized exemptions will be available for individuals with objections based on disability or sincerely held religious beliefs.

Federal executive branch workers and contractors who do not get vaccinated and do not meet the standard for a valid exception will be directed to their respective human resources department “for counseling and discipline, to include potential termination.”

The Safer Federal Workforce Task Force said federal agencies should not ask individual employees to provide proof they have been vaccinated. Instead, federal employers should email a vaccine attestation form to all employees. Employees could face disciplinary action and criminal penalties if they make false statements on the attestation forms. Additionally, agencies can investigate good faith allegations of such false statements and request vaccine documentation as part of the investigation process.

Health Care Workers in Medicare or Medicaid Reimbursement Settings: Vaccine Required
Vaccines will be required for health care workers and volunteers in settings that receive reimbursements for Medicare or Medicaid. This standard builds on vaccine requirements for nursing facilities and expands the mandate to spaces such as hospitals, dialysis centers, and home health agencies. This action is intended to create standards of care across the U.S. and will be overseen by the Centers for Medicare & Medicaid Services.

Anticipate Additional Guidance
OSHA is likely to release additional guidance for private-sector businesses in the coming weeks. Plus, the government’s response to the ongoing COVID-19 pandemic will continue to evolve and Bradley & Riley, P.C. will continue to keep clients updated on future changes that could impact the workplace.

For questions involving this or other legal concerns, please contact your Bradley & Riley attorney or Mackensie Graham by email at mgraham@bradleyriley.com or direct line at 319-861-9778.