- The Biden administration has issued a new mandate that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly COVID-19 tests.
- The mandate is a part of Biden’s overall bigger plan to control the spread of COVID-19, which is spiking in many areas due to the Delta variant.
- The government’s workplace safety arm, the Occupational Safety and Health Administration (OSHA), will be responsible for enforcing the mandate through complaints, warnings, and fines.
President Joe Biden issued a new rule on Sept. 13 that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly tests.
The White House estimates the new requirement “will impact over 80 million workers in private sector businesses with 100+ employees.”
The rule is a part of Biden’s overall bigger plan to control the spread of COVID-19.
This comes as parts of the United States are enduring a summer spike in COIVID-19 cases that is worse than a year ago when no COVID-19 vaccines were available to anyone. That has some leaders calling the recent outbreaks a “pandemic of the unvaccinated.”
Biden is doing this by directing the government’s workplace safety arm, the Occupational Safety and Health Administration (OSHA), to make a rule. (Though this is already being challenged in court, including by the attorney general of Arizona.)
Only recently has one of the three available vaccines received full approval from the Food and Drug Administration (FDA). That distinction gives the federal government more authority over what it can enforce, namely over policies that make working conditions unsafe for employees during a lingering pandemic.
Much like how the FDA gave the Pfizer, Moderna, and Johnson & Johnson shots emergency use authorization (EUA), Biden gave OSHA authority to issue an emergency temporary standard (ETS) to make it legal to fine businesses that have unvaccinated employees.
Kathryn Bakich is senior vice president and health compliance practice leader at Segal, an employee benefits consulting firm. She says this is the first vaccine mandate ever applicable to private employers, and as a result, those employers “are moving toward mandatory vaccination policies at great speed.”
“Organizations not mandating vaccines are considering whether they can implement premium differentials in their health plans to penalize employees who won’t get the vaccine,” Bakich told Healthline. “Wellness regulations currently permit incentives and penalties for taking legitimate health-related steps, so a COVID-19 vaccination incentive should be permissible.”
Bakich says she expects the Biden administration to help employers by explicitly issuing guidance to permit these incentives.
According to the U.S. Small Business Administration, businesses with fewer than 100 employees have the largest share of small business employment.
Since the majority of businesses in the United States are considered small businesses — local restaurants and bars, barbers and hairstylists, and grocery and corner stores — the rule impacts high-volume chains and businesses that are more likely to come in contact with more people on an average workday.
A division of the U.S. Department of Labor, OSHA is already responsible for setting safety standards, from signage alerting people that the floor is wet to mandating businesses have eyewash stations for workers who have to handle potentially dangerous chemicals.
So how is OSHA going to enforce the new vaccine and testing mandate? The same way it does with anything else: through complaints, warnings, and fines.
Los Angeles-based labor and employment attorney Jonathan LaCour says those fines — much like speeding tickets — will increase for businesses and individuals who do not comply with the new vaccine and testing order. And the more unvaccinated employees a business has, the larger its potential liability.
“Make no mistake. There will be monetary incentives for large employers to comply or to be subject to fines and the OSHA legal process,” he said. “These fines could vary, but I would expect them to be very large for large employers.”
LaCour says he’s seen OSHA lobby fines up to $50,000 for other non-COVID-related violations.
“This isn’t a laughing matter,” he said. “If they adopt a per-person violation fine, we could expect fines to be in the millions for larger employers.”
The small businesses that fall under the new vaccine rules were also most likely closed and hit hardest during the pandemic.
With so many people’s livelihoods at stake — from employers to employees — there’s also the chance that some people don’t want to get vaccinated but still participate in activities restricted to those who have received all of their shots.
Blake Hall, a fraud expert and founder and CEO of ID.me, a secure digital identity network, says with so many people’s jobs on the line and possible further mandates soon, there’s “a pretty strong incentive for fraud.”
There’s little in the way to prevent people from trying to get around mandates by using fraudulent vaccine records. Such was the case recently where a Newark, N.J. hospital fired several employees for submitting fake COVID-19 vaccine cards.
The key to being able to fully enforce vaccine mandates — from employees to customers — Hall said, is creating a centralized place where a person’s identification can be paired with their vaccination status so vaccine mandates can be enforced with accuracy and ease.
“That’s incredibly difficult because our healthcare data is so fractured,” Hall said. “America doesn’t have a centralized healthcare information hub, for better or worse.”