By Saba Zafar, Esq.
Jaimee K. Wellerstein, Esq.
On September 9, 2021, 5 days after COVID-19 related federal unemployment benefits ended, President Joe Biden announced new strategies to combat the pandemic. The announcement comes as the delta variant continues to surge and nearly eighty million Americans remain unvaccinated.
The upcoming federal vaccination mandate will take form of an Emergency Temporary Standard (“ETS”) from the Occupational Safety and Health Administration (“OSHA”). The ETS is expected to mandate that private businesses with 100 or more employees (“Covered Employers”) require their workforces to become fully vaccinated or test negative for COVID at least weekly. The ETS is also expected to mandate paid leave to enable employees to get vaccinated. Employers who do not comply with the mandate will face a hefty fine.
President Biden also announced vaccination mandates for all Federal employees without the alternative of weekly testing, and healthcare facilities that receive Medicare or Medicaid funding.
Various states, including South Carolina and Oklahoma, have already spoken out about the constitutionality of the mandate and as such legal challenges to the federal mandate are likely forthcoming. In the meantime, Covered Employers will be expected to comply with the mandate.
Impact on Covered Employers
Covered Employers who previously did not have a mandatory vaccination policy will now have to implement such a policy. While Covered Employers can seemingly provide an alternative to receiving a COVID-19 vaccine, weekly testing for unvaccinated employees may become expensive and burdensome as employers will likely have to pay for the test and then wait for test results, impacting business finances and operations.
As many employers know, the Equal Employment Opportunity Commission, the Department of Fair Employment and Housing, and most recently the Department of Justice, have all issued guidance allowing for a mandatory vaccination policy without an alternative testing requirement, though employers are still required to and should provide reasonable accommodation based on a qualified medical reason and/or sincerely held religious belief. Based on the EEOC, DFEH, and DOJ guidance, unless the OSHA emergency rule requires COVID-19 testing as an alternative, Covered Employers may consider a mandatory vaccination policy without such an alternative.
More information is forthcoming as we wait for OSHA to issue the vaccination mandate and requirements for the same. In the meantime, the attorneys at Bradley & Gmelich, LLP are standing by to provide advice and assistance regarding mandatory vaccination policies.
Saba Zafar, Esq. is Special Counsel in Bradley, Gmelich & Wellerstein LLP’s Employment Law Department. Saba has over a decade of experience as an attorney, primarily in employment law. Saba focuses her practice of providing strategic advice and counsel in all aspects of employment law and workplace matters, including drafting and implementation of HR policies and procedures, Employment Handbooks, providing advice to clients on personnel issues as well as general business matters.
Prior to joining the firm, Saba was a Senior Counsel providing advice and counsel to mid-sized to large businesses on employment law compliance and day-to-day employment issues, including implementing policies and procedures, employee classifications, employment separations, managing and disciplining employees, and COVID-19 rules and regulations. Saba also handled a wide variety of employment matters in state and federal court, including cases involving wrongful termination, discrimination, and wage related cases.
In her spare time, Saba has volunteered as a Mediator for the Department of Consumer Affairs and the Orange County Human Resources Department. She was also a Volunteer Tutor for Schools on Wheels, tutoring elementary school students on skid row in Los Angeles. Prior to practicing law, Saba was a Judicial Extern for California Court of Appeal, Second Appellate District.
In her free time, Saba enjoys embarking on culinary adventures and catching up on new television shows.