President Joe Biden announced Thursday that he’s instructing the Department of Labor to require all employers with more than 100 employees to mandate vaccinations or undergo weekly COVID tests.
Biden estimated his executive order will affect 100 million individuals, or two-thirds of workers in the U.S. Those same employers will also be required to give workers paid time off in order to get their vaccination. The upcoming rules will be enforced by OSHA. It is not yet clear how restaurant chains will be affected by the 100-plus employee rule.
“We’ve been patient, but our patience is wearing thin,” Biden said during his speech Thursday. “And your refusal has cost all of us. So, please, do the right thing. But just don’t take it from me; listen to the voices of unvaccinated Americans who are lying in hospital beds, taking their final breaths, saying, ‘If only I had gotten vaccinated.’ ‘If only.’”
The move marks the biggest push by the federal government to increase vaccinations as roughly 80 million Americans have yet to receive any shots. As of Thursday morning, 62.7 percent of the population have received one dose and 53.4 percent were fully vaccinated, according to the CDC. Meanwhile, COVID cases have declined in recent weeks, but are still high compared to the beginning of summer. The seven-day moving average for COVID cases was 136,558 on Wednesday, compared to 156,856 on August 30.
The National Restaurant Association came out in favor of the executive order.
“The National Restaurant Association and the restaurant industry support vaccination for everyone because higher vaccination rates are our best bet for containing the spread of COVID-19. Our COVID-19 Operating Guidance best practices continue to suggest that all restaurant employees be vaccinated if possible,” said Sean Kennedy, executive vice president of public affairs, in a statement.
As has been the case in markets like New York City, New Orleans, and San Francisco, however, hurdles—and plenty of uncertainty—will likely emerge in regards to enforcement. In NYC, restaurants are being asked to comply by September 13. If they fail to do so, businesses will be fined $1,000 for a first offense, $2,000 for a second, and $5,000 for a third.
“While we appreciate the intent of this executive order, we hope that the Administration will work with us to take into consideration the unique operations of restaurants when creating the guidelines for implementation,” Kennedy said.
According to a recent Sangajob survey, 67 percent of 1,872 hourly workers polled said they’d work for an employer that required them to be vaccinated.
In August, a Littler Mendelson survey of 1,600 employers found 80 percent of employers in retail/hospitality said they were worried about resistance from employees who are not in a protected category, but refuse to get vaccinated; 73 percent were worried about the impact on their company’s culture if a vaccine mandate went in place; and 69 percent cited loss of staff and difficulty operating as a major concern in enacting a vaccine requirement versus just 60 percent of all employers.
Currently, restaurant employees are required to provide proof of vaccination or a negative COVID test in New Orleans, Honolulu, Philadelphia, and San Francisco, as well as a couple of Seattle counties. NYC joins this coming week. And the same requirements extend to customers wishing to dine inside.
McDonald’s, in August, also announced corporate employees would need to get vaccinated by September 27, joining a growing list of major corporations, such as Amazon, Google, Apple, and Walmart. Restaurateur Danny Meyer revealed earlier in August that his New York-based Union Square Hospitality Group would require all restaurant workers, new hires, and customers to be vaccinated. Employees had until September to decide whether to get vaccinated.
“This is a pandemic of the unvaccinated,” President Biden said Thursday. “And it’s caused by the fact that despite America having an unprecedented and successful vaccination program, despite the fact that for almost five months free vaccines have been available in 80,000 different locations, we still have nearly 80 million Americans who have failed to get the shot.”
“And to make matters worse, there are elected officials actively working to undermine the fight against COVID-19,” he added. “Instead of encouraging people to get vaccinated and mask up, they’re ordering mobile morgues for the unvaccinated dying from COVID in their communities. This is totally unacceptable.
President Biden will sign an executive order to require all executive brand federal employees to be vaccinated, and he signed another that required federal contractors to do the same.
"The announcement by President Biden is a real game changer for many employers,” Steve Bell, a partner at the international law firm Dorsey & Whitney, said in an email. “Now that the federal government will be mandating vaccinations for federal employees AND contractors, the impetus for other employers to mandate vaccinations for the workforce will increase exponentially. The fact that the largest employer in the US (the federal government) is mandating vaccines will give comfort to private employers who have been hesitant to require vaccines. It may also set the standard for what a reasonable employer should be doing in the face of this continuing epidemic.”
"OSHA, which falls under the U.S. Department of Labor, will issue an Emergency Temporary Standard to implement the new rule. Although the timing of when the ETS requirement will go into effect is not clear, it will likely not be a long wait," adds Keith Wilkes, a labor and employment partner/shareholder at the national law firm Hall Estill. "The federal government did its legal homework before implementing the same mandate, via executive order, for federal employees in July. Today, however, President Biden announced that he is removing the regular testing option for federal employees and employees of all federal contractors. Employers impacted by the new OSHA rule will be required to explore whether reasonable accommodation exists for those employees who seek refuge from the vaccination mandate because of a sincerely held religious belief, or a disability-based reason. Absent falling into one of those two categories, unvaccinated private sector employees who fall under this new rule will have no choice but to obtain full vaccination if they wish to keep their current job."
In addition to the vaccination mandate, President Biden announced the expansion of the COVID-19 Economic Injury Disaster Loan program, or the EIDL. It’s going to now allow small businesses to borrow up to $2 million from the current $500,000 to keep going if the pandemic impact sales.
“These low-interest, long-term loans require no repayment for two years and be can used to hire and retain workers, purchase inventory, or even pay down higher cost debt racked up since the pandemic began,” President Biden said. “I’ll also be taking additional steps to help small businesses stay afloat during the pandemic.
Requirements for businesses that are looking to utilize the EIDL will now mirror the Restaurant Revitalization Fund as well—a key request the Association asked for in lobby efforts.
“We welcome the expanded provisions included in the latest rules on the Economic Injury Disaster Loan (EIDL) program and thank the U.S. Small Business Administration for their leadership and dedication to connecting small business franchise owners to the benefits they urgently need,” said Matt Haller, president and CEO of the International Franchise Association, in a statement. “The SBA’s intent is to ensure brand-specific franchises can benefit from the program. We will always advocate for the needs of small business owners still financially recovering from the COVID-19 pandemic and look forward to working with the U.S. SBA on future relief projects.”
EIDL funds can now also be used to pre-pay business debt, meaning small business restaurants carrying higher-interest commercial debt, or credit card debt acquired over the last year, can deploy EIDL funds to pay off that debt in one lump sum.
“At a time when there is still an extreme need for small business restaurants to access working capital, these changes will improve the outlook for thousands of operators and will lift the economic outlook for communities small and large,” Kennedy added in a statement. “We worked with the SBA to improve the terms and use of these federal loans so they could be more impactful. The changes we secured will provide an additional rebuilding tool at a time when operators are once again faced with uncertainty.”