On Thursday, September 9, 2021, President Joe Biden announced a federal vaccine mandate for all U.S. companies with more than 100 employees. The new mandate will affect as many as 100 million American workers and require them to get vaccinated or get tested for COVID-19 once a week. Employers must also give workers time off to get vaccinated and recover from post-vaccination side effects.
Many in Tennessee, including Governor Bill Lee, are speaking out against the new vaccine requirement, and experts expect legal challenges from states across the nation. Elsewhere, The New York Times reports relief among businesses who were already moving toward vaccine mandates and feel supported by the federal government.
More Questions Than Answers
Still, both employers and employees across the political spectrum are wracked with questions like: “who pays for weekly testing when employees opt out of vaccinations?” and “how should religious exemptions be handled?” For now, there are few answers, and many employers are waiting for updated guidance from the Occupational Safety and Health Administration (OSHA) to roll out vaccine requirements. According to the White House coronavirus response coordinator, the new OSHA rule should come to light “over the coming weeks” and penalties for violating the new standard “could be quite significant.”
When it comes to implementing a vaccine mandate, however, employers have a lot to think about, including how the requirement will affect workers, company procedures, and profits. Employers may also open themselves up to legal trouble when determining whether an employee has a “sincerely held religious belief,” especially when religion is one of the only exemptions to the mandate, and conducting case-by-case analyses can be time-consuming. Employment lawyers expect requests for religious exemptions to “skyrocket” once the OSHA rule goes into effect.
As far as making vaccination a condition of employment, many companies are already worried about understaffing, so they can’t afford to fire someone or have them quit. Those with remote employees question how they will enforce vaccine mandates or weekly testing in all 50 states. Employers across the nation also wonder who will pay for the COVID-19 tests and which types of tests will meet federal testing requirements.
Proof of Vaccination
Even for employees who get vaccinated, employers could face challenges when requiring proof of vaccination and will need to be careful with workers’ private information. Worse still, some employees might present falsified vaccination cards, which is a federal crime and explicitly against the law in some states. For employers, now is a good time to update employee handbooks and remind employees of the penalties for fraud, lying, and similar conduct at work.
How Will the Federal Mandate Be Enforced?
OSHA is currently writing the new standard, and experts say rules for the vaccine mandate will be published in 3 to 4 weeks. From there, employers should have a few weeks to comply.
As far as enforcement, OSHA could focus on “problematic” industries, conduct inspections based on worker complaints and workplace outbreaks, or look for vaccine compliance in existing investigations.
The National Employment Law Project says with the agency’s current number of investigators, it would take more than 150 years for OSHA to “conduct a single inspection of each workplace under its jurisdiction.” As such, enforcement is likely to be strategic, and OSHA will not hesitate to make an example of those it penalizes, charging a fine for each employee affected.
What Should I Do as an Employer or Employee in Tennessee?
If you are an employer in Tennessee, prepare to implement a vaccine policy at your workplace. Keep your plan flexible, so you can change it to better adhere to upcoming OSHA guidelines. Remind employees of the laws surrounding vaccines and emphasize existing rules in your employee handbook. If you can, start considering requests for religious exemptions sooner rather than later, as you can expect many more of them when the vaccine mandate goes into effect.
For employees, your best course of action is getting vaccinated sooner rather than later. This way, you will be prepared for any mandates that come your way. You will also be better protected from the virus that causes COVID-19. You can learn more about COVID-19 vaccinations on the Centers for Disease Control and Prevention (CDC) website. Use reliable sources to educate yourself and beware of misinformation.
If you have a medical condition or a religious objection to vaccination, you can notify your employer before mandates go into effect. This will give your employer a head start on confirming your exemption. Keep in mind that you may be responsible for regular testing if you cannot get the vaccine. Many sites offer free COVID-19 testing across the United States, and many testing centers accept health insurance.
Both employers and employees can start preparing for change today. Preparation can also help you detect conflict and get legal advice if you need it.
Get Legal Help
At Donati Law, PLLC, our firm is dedicated to helping employees protect their rights within the workplace. If you are worried about religious discrimination or disability discrimination or feel that your employer has violated your right to privacy, we encourage you to talk to our attorneys.
Similarly, we can help enforce the new OSHA rule when it emerges and preserve workplace safety.
Whether you cannot get the vaccine or need time off to recover from its side effects, call us at (901) 209-5500 or contact us online for prompt legal assistance. Every case is a cause we believe in.