On September 9, 2021, President Biden announced a plan to require all private employers with one hundred (100) or more employees to ensure that their workers are fully vaccinated against COVID-19, or produce a negative COVID-19 test each week. OSHA has yet to release the emergency rule which would implement this policy, but employers should be prepared to act quickly as the expectation is that timeframes for compliance are likely to be very short.
Legality of Vaccine Mandate
Many armchair attorneys on social media have decried the illegality of Biden’s proposal for a vaccine mandate. However, courts have been very accommodating to vaccine mandates. Courts regularly rule against challengers to vaccine mandates based on the 1905 Supreme Court ruling in Jacobsen v. Massachusetts. That ruling set a precedent establishing the constitutionality of compulsory vaccination laws.
Expected Challenges to a Vaccine Mandate
Many states, including Arizona which has already filed a preemptive lawsuit, indicated shortly after the President’s announcement that they will challenge any potential mandate. While the pathway for a successful challenge by the states is extremely narrow, the chance success is not impossible. The Biden mandate may have some weakness on Article 2* grounds because the mandate has not been legislated by duly elected officials. Employers cannot bank on the success of any argument, and should prepare as if any potential mandate will carry the weight of law.
How to Prepare
Preemptively Implement a Vaccine/Testing Policy
Draft a policy that mirrors the expected OSHA regulation and implement it now. The advantage to such action is that employers will have a jump start on educating the workforce and dealing with any objectors to the policy. Companies will have precious little time to demonstrate compliance. Therefore, a head start on compliance can help avoid costly fines and administrative action against the business.
Beef Up Your HR Systems
Any mandate will likely come with reporting requirements. In addition, a bevy of local, state, and federal legislation protects Health information, including vaccination records. You must ensure that your human resources procedures allow you to collect, maintain, and report vaccine or test results in a manner consistent with all the regulations which govern health information. This particular requirement will impact smaller businesses disproportionately if they do not prepare.
Prepare of Objections and Accommodation Requests
Any potential regulation will have provisions requiring certain accommodate. For instance, employees have certain religious, medical, and other objections available to them based on various statutes. It is critical that employers know the potential exemptions and the process required in vetting employee claims. Working closely with your legal counsel or HR professional is a must to ensure you are in complete compliance. NLRA provides complete compliance solutions, including advice on OSHA, NLRB, and DOL regulations.
