Last week, President Biden announced a new six-pronged strategy to combat a surge of covid-19’s delta variant sweeping across the US. The president’s plan includes a requirement that all federal workers and contractors be vaccinated; compulsory vaccinations for healthcare professionals; vaccine passports or testing at large entertainment venues, such as sports arenas and concert halls; and the right for workers to receive paid time off to be immunised against the disease.

Central to the plan, however, is the requirement for all US companies with more than 100 employees to ensure their workforce is fully vaccinated or tested for coronavirus on a weekly basis. The Occupational Safety and Health Administration (OSHA) has been tasked with issuing an emergency temporary standard that will impact more than 80 million workers in private-sector businesses.

In the wake of the White House’s announcement, many employers and unions are anxiously awaiting more detail from the three regulatory agencies (the Safer Federal Workforce Task Force, the Federal Acquisition Regulatory Council, and OSHA) tasked with enforcing the president’s executive orders.

Although an ever-increasing number of large companies have already taken a firm position on vaccine mandates – including Delta Airlines, Johnson & Johnson, and Disney – small and medium-sized organisations are concerned with the practical and logistical challenges of complying with President Biden’s orders, as well as the risk of legal challenges they may face from anti-vax employees or state agencies.

“Only one US state – Montana – appears to have tried to prevent private US businesses from making their own rules with respect to whether and to what extent vaccination will be required in their workforce,” says David Baffa, a partner at Seyfarth Shaw in Chicago. “US federal law requires that employees be provided the opportunity to object to a vaccine mandate based upon a sincerely held religious belief or because of a disability that essentially prevents vaccination.”    

If an employee presents such an exemption request, the employer is obligated to attempt to find a reasonable accommodation or other means of safely protecting its workforce. This could include requiring frequent testing, masking, distancing, or remote working, Baffa explains.

“In considering these alternatives, however, the employer is not required to put something in place that would present an ‘undue hardship’ to the business – what constitutes an undue hardship is actually a bit different for disability considerations (higher standard) than for claimed religious exemptions (lower standards),” he adds.   

“In general, jeopardising the health and safety of the workforce is seemingly an undue hardship that may justify a refusal to implement an accommodation, particularly for claims of religious exemption, but these theories are as yet untested relative to covid-19 vaccines. Some employers faced with voluminous religious exemption claims are imposing an unpaid leave of absence as a reasonable accommodation during this period when the delta variant is causing particularly high rates of infection or undue strain on hospital systems.”

Remote worker complications

Also searching for answers over the scope of the executive orders are those companies with both full-time and part-time workforces, and they are wondering whether the vaccination mandate applies equally to both groups. For Baffa, the number of hours an employee works is not expected to have any bearing on the mandates. However, vaccinating fully remote workers will present employers with a challenge.

“They are an interesting complication,” he says. “It is not expected that OSHA’s standards will truly reach all remote workers because, at this time, the agency only regulates employer’s workplaces, so an individual employee’s home office has not been within OSHA’s focus. For government contractors, however, it is more likely – but still uncertain – that the mandate would reach remote employees because that mandate would be through a contractual requirement with the federal government.”

Although the Centers for Disease Control and Prevention has reported that 63% of the US population over the age of 12 is fully vaccinated against covid-19, vaccine hesitancy and scepticism remain across the nation. States with the lowest percentage of populations fully vaccinated include West Virginia (40%), Wyoming (40%), Idaho (40%), Alabama (40%), and Mississippi (41%), according to recent data. A recent poll also found that the states with the highest share of residents refusing to get a shot are South Dakota (33%), Idaho (32%), and Alaska (29%).

Employers do need to come up with a plan for potentially dealing with a high volume of exemption requests

“We see many employees who, for personal reasons, do not wish to be vaccinated or do not wish to be forced to vaccinate, and who have been working remotely with relative success for as many as 18 months,” says Baffa. “Many employees who seek to be exempt from vaccination requirements are essentially seeking the opportunity to continue to work remotely, and employers are wrestling with both legitimate and suspicious claims for exemption from mandates.  

“For positions that must be conducted in person or on-site, these mandates are easier to enforce. But for roles that can and have been done remotely, it is more difficult to consider how refusals or claimed exemptions from vaccination should be handled. In some parts of the US, employers are confronting situations where as many as 40-70% of employees remain unvaccinated and are not planning to do so.”

For employers that are confused by or concerned about enforcing inoculation on workers who refuse to comply with the presidential mandate, Baffa advises waiting for new federal guidance to be published before acting. Once the guidance has been received, employers would be wise to follow the lead of other organisations that have already implemented their own vaccination programmes.  

“Depending on the nature of their workforce, employers do need to come up with a plan for potentially dealing with a high volume of exemption requests,” he says. “Over time, we expect to get more clarity on employers’ options when the guidance comes out, and when disputes start working their way through the legal system. 

“For now, there is very little legal risk associated with terminating employees who refuse to vaccinate for personal reasons, and there are plenty of alternatives and accommodations available for those employees who have legitimate disability- or religion-based reasons not to vaccinate.”

Politically motivated challenges

In his remarks last week, President Biden took aim at “a distinct minority” of Americans promoting anti-vaccination theories and conservative politicians who “are keeping us from turning the corner”. He added: “These pandemic politics are making people sick, causing unvaccinated people to die. We cannot allow these actions to stand in the way of protecting the large majority of Americans who have done their part and want to get back to life as normal.”

Describing the move as an “unlawful overreach”, several Republican state governors have already vowed to fight the president’s orders, which have also received backlash from Republicans in Congress, suggesting the federal government’s vaccine mandate is not going to be given an easy ride through Washington, DC, or conservative-controlled state capitals. 

“The American people should have the freedom to make the best decisions for their families rather than accepting forced illegal mandates from a power-hungry government,” said Elise Stefanik, chair of the Republican conference in the House of Representatives.

The resistance against vaccination is high enough that the threat of job action may create real hardship for employers

“These types of lawsuits, if filed, would generally challenge the constitutionality of federal action in an area traditionally left to the states to manage,” explains Baffa. “Indeed, no US state has yet imposed a mandate on private employers to get their employees vaccinated. It is also expected that lawsuits will be filed to enjoin OSHA and other agencies from implementing their rules, once they are announced.”

Although any legal challenges are likely to be politically motivated, it is telling that, as yet, employer lobbying organisations have yet to openly oppose the new requirements. “Many employers – particularly large employers – are actually pleased to have the ‘cover’ of the federal government mandate to take steps they’ve long wished to take to require vaccination and ensure the protection of their workforce,” says Baffa. 

“At the same time, many employers – especially smaller employers – are facing worker shortages and in some parts of the country, the resistance against vaccination is high enough that the threat of job action or further labour shortages may create real hardship for employers that could spark legal challenges.”

Risks of non-compliance

While the legal risks to organisations that fail to comply with the mandate are yet to be fully articulated, Baffa expects OSHA to impose a per-individual fine for every employee it can identify as not having been vaccinated, along with associated penalties. “If there are follow-up violations, OSHA generally will impose additional fines and liability for ‘willful’ violations, which can become substantial,” he adds.

A statement from the Department of Labor in January states that OSHA inspectors may impose up to $13,650 in fines for violations and up to $136,500 for willful or repeated violations. However, given the relatively small size of the agency tasked with enforcing the mandate, it has been suggested OSHA will be strategic in which employers it will investigate for non-compliance. This raises a question as to which organisations are most likely to find themselves in the watchdog’s crosshairs.

“Although it is too early to be certain, OSHA is likely to focus on sectors where there are ‘essential workers’ – those who, even during the height of the pandemic, were required to work in person and in close proximity,” suggests Baffa. 

“It may be some time before we have a sense for the level of intensity of OSHA’s enforcement means, and while it is true that OSHA may not have the resources to police its standards in every workplace, it should be noted that simply having the standard will be enough to bring about substantial compliance in most workplaces. By analogy, posting a speed limit does help to reduce the speed at which most drivers drive, even if there are not enough police to monitor every inch of the roadway.”

By contrast, the risk of non-compliance for federal contractors is, in general, a contractual one with the contractor that fails to comply with any new mandate requirements facing debarment and the loss of a government contract.   

Although it remains to be seen how the government will look to enforce these contractual requirements, Baffa presumes the process will involve the Office of Federal Contract Compliance Programs, which currently uses mandatory reporting and spot-audits to ensure compliance with other federal contractor requirements, such as pay equity and affirmative action programmes to ensure non-discrimination in sourcing and hiring. 

“Outside of these legal and commercial considerations, we expect social media, consumers, and employees themselves will end up applying pressure on companies – particularly public-facing companies – but that pressure will look differently in urban, more liberal environments as compared to rural, more conservative environments,” he says.

Despite its intention to save lives and kickstart the US’s economic recovery post-covid, there are fears in some quarters that the president’s vaccine mandate could have unintended consequences for employers and their workers.

“Conventional wisdom is that mandates may cause some who are vaccine-hesitant to become even more reluctant to trust the government,” says Baffa. “Currently, many retailers and restaurants are struggling to find labour, and it could be that the vaccine mandates make labour shortages even more acute if employees are separated from work as a result of their refusal to vaccinate. 

“Unless and until states come forward and disallow unemployment insurance to those whose employment is terminated for refusing to vaccinate, there is some risk that more workers will be out of the workforce while still receiving government or union-backed benefits and welfare, all while still refusing to get vaccinated.”