Last week, as part of his “Path Out of the Pandemic” Action Plan, President Biden announced that all employers with 100 or more employees must require their workers to be vaccinated or produce a negative test result at least weekly. The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) will issue an emergency temporary standard (“ETS”) implementing the requirement. OSHA is also developing a rule that will require employers with 100 or more employees to provide paid time off to employees to be vaccinated or recover from any vaccine-related side effects. These requirements will not be effective until OSHA issues the ETS and rule or sets effective dates. In addition, legal challenges to the vaccine mandates are expected. The White House estimates that more than 80 million workers will be impacted by this mandate.

In addition, President Biden announced an executive order that will require all federal government employees and contractors to be vaccinated against Covid-19. Unlike the prior requirements announced in July, employees will not be allowed to opt out of the vaccination mandate by wearing masks, socially distancing, and undergoing weekly testing for Covid-19. With respect to federal contractors, the Safer Federal Workforce Task Force has been ordered to issue guidance by September 24 that will provide definitions of relevant terms for contractors and subcontractors, protocols, and any exceptions.

President Biden also will require vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, such as hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. Previously, President Biden had only issued such requirements for nursing homes.

The Administration estimated that the new requirements could impact as many as 100 million Americans. Employers who fail to comply will be subject to penalities.

The new rule will raise a number of issues for employers implementing mandatory vaccine requirements.