September 15, 2021
by Stephanie Chapa

Biden’s Employer Vaccine Mandate

By Diane E. Coderniz

On Thursday, President Biden issued the most expansive COVID-19 vaccine mandate yet.

All U.S. private-sector employers with 100 or more employees must require their employees to be vaccinated or produce a weekly negative COVID-19 test. At a time when employers are having difficulty finding and keeping employees, this mandate is expected to further the workforce shortage. With little guidance yet available, many employers are asking what is required and what are the penalties if they do not comply.

First, the mandate is not yet in effect.

Biden’s mandate is being implemented by the Department of Labor’s Occupational Safety and Health Administration (“OSHA”), the federal equivalent of Cal/OSHA. OSHA is in the process of developing an emergency temporary standard (“ETS”) for private-sector business with 100 or more employees to implement the mandate. California employers are likely very familiar with ETS at this stage of the pandemic as Cal/OSHA has issued and revised such a COVID-19 ETS, most recently requiring employers to track vaccines and require masks for unvaccinated employees. Issuance of an ETS allows OSHA to shortcut its normally lengthy rulemaking process. Because the ETS is not yet drafted, it is unclear when the mandate will take effect. It is likely to be implemented sometime in October.

The penalties for noncompliance are steep.

The penalty for employers who refuse to comply with the ETS is substantial – $14,000 for each employee in violation.
There will be challenges to this mandate. It is expected that some employers will challenge the new law, arguing that the ETS procedure is inappropriate. But, California employers must comply in the meantime. Unlike some other states that are already preparing to refuse the ETS and opposing the mandate, California will follow and enforce the ETS, potentially revising its own ETS to similar suit.

Bottom Line

Employers with 100 or more employees should begin preparing to implement these required changes. Revisions to existing COVID-19 policies, preparation of notices, and plans for dealing with religious and medical accommodation requests should be considered. Should you need assistance, Baker Manock & Jensen attorneys are here to help.

Contact us for details or assistance

Diane Coderniz

As always, we advise you to consult with your favorite employment law attorney should you have any questions or to get a more detailed briefing on any new laws. The BMJ Employment Law Department is happy to help.

Baker Manock & Jensen’s Employment Law Practice Group is facilitated by partner Diane Coderniz who has extensive experience representing employers, in both the public and private sector, in a broad range of employment matters, including counseling employers on day-to-day issues, and litigating cases throughout the State of California. More information about Baker Manock & Jensen and Ms. Coderniz can be found on the Attorneys and Services sections of this website.