Federal Vaccine Mandates

September 10, 2021

Yesterday President Biden issued two Executive Orders and a COVID-19 action plan, in furtherance of a strong federal policy of increasing the number of Americans who are vaccinated against COVID-19. The Orders and plan rely largely on employers to implement this policy.

The first Executive Order requires all federal agencies to implement mandatory COVID-19 vaccination programs for their employees, with exceptions only as required by law (e.g. for medical conditions and religious beliefs). The Safer Federal Workforce Task Force will issue guidance about these mandatory vaccination requirements within seven days.

The second Executive Order pertains to federal contractors and subcontractors. It requires all new or renewed federal contracts and subcontracts to include a requirement that the service provider will comply with pandemic-related guidance published by the Safer Federal Workforce Task Force. This guidance is expected to require mandatory vaccinations under terms similar to those applicable to federal employees. As a practical matter, these requirements will phase in over time as new contracts are entered and existing contracts are renewed.

The Path Out of the Pandemic plan is a six-prong plan for limiting the spread and reducing the damage caused by the COVID-19 pandemic. Employers will be most affected by a forthcoming rule to be issued by the Occupational Safety and Health Administration (OSHA) that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis. This rule will also require employers to provide paid time off for vaccinations, as well as for recovery time if an employee experiences vaccination side-effects. The Biden administration has indicated that the rule will be rolled out in “the coming weeks.” It may be subject to legal challenges that further delay its implementation. In addition to this anticipated OSHA rule, the plan calls for other rules that will require most health care workers and the staff of Early Head Start programs, Department of Defense schools, and Bureau of Indian Education schools to be vaccinated.

As a final note, most employers, whether or not subject to these federal vaccine mandates, may voluntarily issue vaccination mandates for their employees. In accordance with the Americans with Disabilities Act, vaccination policies must be “job related” and “consistent with business necessity” and must allow for reasonable accommodations for employees whose sincerely held religious beliefs or medical conditions prevent them from being vaccinated. Accommodated employees may be required to take additional safety measures, such as masking, periodic COVID-19 testing, and telework.

If you have questions about how these Executive Orders and forthcoming rules will impact your organization or if you would like assistance in implementing a vaccination policy for your organization, please contact Shaunda McNeill at slm@clydesnow.com or 801-322-2516.