President Biden announced private employers with more than 100 employees will be required to either mandate vaccines or require weekly COVID-19 testing, and that governmental employees and employees of governmental contractors will be required to get vaccinated.
The Biden Administration’s policies are expected to impact roughly 100 million working Americans. It is important to understand all aspects of these policies and how they will affect American employers and their workers.
To break down each component of the current administration’s plan, Dorsey & Whitney LLP lawyers and staff hosted a webinar encompassing President Biden’s Mandatory Vaccination Executive Order earlier this week.
There are four categories of employers considered under the Biden Administrations Executive Order: federal employers and federal contractors and subcontractors; private employers with 100 or more employees; health care employers; and other employers if they take Medicare or Medicaid.
For the hour-long webinar, Dorsey & Whitney focused primarily to the private employer’s category.
“For private employers with a hundred or more employees who do not fall in either of those categories (Medicare or Medicaid) there’s a choice, and that requires employers to require every employee to be vaccinated, or the employee has to submit negative COVID-19 test results on a weekly basis before coming to work,” says Jillian Kornblatt, partner at Dorsey & Whitney.
Dorsey & Whitney colleagues explained these parameters may be flexible for those companies with employees who work from home or who have multiple locations. However, these parameters have yet to be outlined by the administration.
Dorsey and Whitney’s Partner, Gabrielle Wirth explained the emergency temporary standard (ETS) quota.
“The standard is when employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful. And with the explosion of COVID-19, especially the Delta variant, that’s what they’re relying on in terms of saying that we’re now at a point where this strain is so dangerous that we have to react on an emergency basis,” says Wirth.
Alyson Dieckman, Dorsey & Whitney associate, outlined the required action timeline for the ETS.
“The standard can only be in effect for six months, and it’s unclear if they’re going to enact that for the whole six months or if they’ll take it in stages. But once the emergency goes away, then the regulations can be challenged,” says Dieckman.
The Occupational Safety and Health Administration (OSHA) must put permanent standards in effect in the six-month period or they go away. Enacting this permanent process isn’t an easy action, says Dieckman.
“It involves publishing the regulations, getting public comment, having testimony and getting evidence in support of it. The hope is that we may never get to that, because we may be able to contain it [COVID-19]. But given the length of time that it’s taken so far, there’s a big question about that.”
Past attempts at shutting down executive orders like the Biden administration’s COVID-19 order have been notoriously difficult and unsuccessful, according to the attorneys.
“Many of the governors have threatened to sue, claiming that the federal government can’t impose a statewide mandate like this. I don’t know how successful they’ll be, because there’s a lot of history under OSHA that as long as there’s evidence of the grave danger, the executive branch does have the power to have OSHA issue these kinds of regulations,” says Dieckman.
Dorsey & Whitney Partner Michael Droke says funding is the only factor to consider if you’re a private employer.
“The healthcare mandate is interesting, because it isn’t so much a mandate as a statement that you can do what you want and comply with the state laws in which you operate, we’re just not giving you any money. We’ll cut off Medicaid and Medicare funding for your health care system.”
History of federal funding underlying legislature, like this mandatory vaccine executive order, go back decades, according to Droke.
“This has happened before in 1974. President Richard Nixon signed a law that set a national speed limit of 55 miles an hour, and they didn’t require it. They just said that if you choose to have something other than 55 miles an hour then you’re going to not get federal highway funds. Then, similarly, the requirement that the drinking age be set at 21 was similarly tied to access to federal funding,” says Droke. “The difference here is that this is set by an executive action, not by statute. But the concept of tying receipt of federal funding to a requirement set by the federal government is something that we’ve had for a while.”
For more on Dorsey & Whitney’s take on President Biden’s Mandatory Vaccination Executive Order, listen here: https://www.youtube.com/watch?v=DP4lqLI27pI&t=7s
