Federal Government Releases Details of Biden's Vaccine Mandate

    Companies must ensure employees are fully vaccinated or that they test weekly by January 4.

    Legal | November 4, 2021 | Suzanne Blake
    Male doctor holding syringe making covid 19 vaccination injection dose in shoulder of female patient wearing mask. Flu influenza vaccine clinical trials concept, corona virus treatment, close up view
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    The 100-plus employee count is based on companywide roster count, not per location.

    Employers with 100 or more employees will have to comply with new federal vaccine mandates by the beginning of the new year, according to the U.S. Department of Labor. 

    By January 4, companies of that size must ensure employees are fully vaccinated or that they undergo weekly COVID testing. Unvaccinated workers must wear a face mask in the workplace beginning December 5. Impacted employers must also provide paid time for workers to get vaccinated and allow for paid leave to recover from any side effects, the Department of Labor said.

    The new rule calculates employee count based on companywide numbers instead of per location. For example, a restaurant with multiple company-run stores would include all employees at all locations. However, franchisors and franchisees will be counted as separate entities for the purposes of the law. The franchisor would only include "corporate" employees toward its 100-employee count while each operator counts employees at all of its franchised locations. 

    The Department of Labor’s Occupational Safety and Health Administration (OSHA) also added that part-time employees are included towards employers’ 100 employee count, but independent contractors are not.

    The emergency temporary standard prevents states from enforcing different workplace requirements related to vaccinations, face coverings and COVID-19 testing, except under the authority of a federally-approved state plan. Therefore, the rule invalidates any state or local requirements banning or limiting employers’ abilities to require vaccines, face masks, or testing. This includes Texas, where Gov. Greg Abbott issued an executive order banning any entity from mandating the COVID-19 vaccine.

    READ MORE: What Restaurants Can Expect with Biden's Upcoming Employer Vaccination Mandate

    OSHA said the mandate will protect more than 84 million workers from the spread of COVID while on the job and prevent more than 250,000 hospitalizations due to workplace exposure. Since 2020, more than 750,000 have died in the U.S.

    In order to adhere to OSHA’s rule, employers must determine the vaccination status of each employee, obtain proof of vaccination status, and maintain records and a roster of each employee’s status. Employees must provide prompt notice when they test positive for COVID-19, and employers must then act to temporarily remove the employee from the workplace, regardless of their vaccination status.

    If workers are not fully vaccinated and are in the workplace at least once a week, they must test weekly for COVID-19. Those who are away from the workplace for a week or longer must test within seven days before returning to work. In most circumstances, all employees who have not been fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes.

    “COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said U.S. Labor Secretary Marty Walsh in a statement. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”

    Employers are not required to pay for testing, although other laws, regulations, or agreements may mandate that. Employers also do not have to pay for face coverings, OSHA said.

    “While vaccination remains the most effective and efficient defense against COVID-19, this emergency temporary standard will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus,” said Jim Frederick, deputy assistant secretary of labor for OSHA, said in a statement. “As part of OSHA's mission to protect the safety and health of workers, this rule will provide a roadmap to help businesses keep their workers safe.”

    The OSHA rule will ultimately cover two-thirds of the country’s private sector workforce. Some cities have already enacted vaccine mandates (or a negative COVID test) for restaurant employees and guests, including New York City, San Francisco and New Orleans.