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Who must comply with the vaccine mandate?

The recent vaccine mandate from the Biden Administration includes an estimated 80+million workers. The mandate directs employers of 100 or more employees to require their workers be vaccinated, or show weekly proof of a negative COVID-19 test. The rule for private businesses is currently under development by the Department of Labor and is expected to be rolled out very soon. Employers may want to get a head start by requesting vaccinated employees submit a Proof of Vaccination.

In addition to large employers, federal contractors and healthcare workers in facilities receiving federal funding are also subject to the vaccine mandate. President Biden's announcement made clear that all contractors that work with the federal government will be required to be vaccinated.

Federal employers, including agencies and federally funded schools such as those operated by the Department of Defense Schools and the Bureau of Indian Education, must require all staff be vaccinated. 

What are the consequences of not complying?

While getting vaccinated is not a requirement under the mandate, there may be consequences for employees who choose not to get it, largely due to the fact that large employers can end up facing fines of nearly $14,000 per violation. It is expected that many employers will update their Vaccination Policies as a result of the new mandate. Those policies will likely explain that employees who fail to get vaccinated or show weekly proof of a negative test may face disciplinary action, including termination, from their employer. 

While the rules are still being developed, it is anticipated that OSHA will be tasked with enforcement of COVID safety and policies, as it has been since 2020. OSHA may investigate, review company records, and conduct inspections when they receive complaints or become aware of high infection rates. If OSHA discovers violations, they may issue fines and penalties, including daily fines for ongoing violations.

Are there exemptions or exceptions? 

Yes and no. There are limited exemptions for individuals that have a disability or other medical condition that prevents them from being vaccinated. An exemption similarly exists for individuals with sincerely held religious beliefs that prohibit them from getting vaccinations. Generally, to qualify for a medical exemption, employers may require a signed statement from a licensed healthcare professional to verify the exemption. 

Notably, employees who qualify for a vaccine exemption, or refuse to get vaccinated, may be subject to the weekly testing requirement. Also, if an employer does not accept an employee's exemption, then the employee may similarly be required to show proof of a weekly negative test.

So while there may be exceptions for getting a vaccination, there is not one for showing weekly proof of a negative COVID-19 test if required by your employer.

Must employers fire employees who do not get vaccinated or show weekly negative tests?

No. Employers are not required to fire employees who do not get vaccinated or show weekly negative tests. It should be noted, however, that employers could face heavy fines for failing to comply. As a result of those fines, employers may be motivated to let uncooperative employees go rather than take the risk.

Will booster shots be required under the vaccine mandate?

While a specific rule about vaccine boosters has yet to be released by the White House, it is likely that, in the near future, booster shots will be required for an individual to be considered fully vaccinated. At this time, however, booster shots are not available to the general public and not a requirement under this vaccine mandate.

Yes. The United States Constitution does grant the federal government authority to regulate federal workers, contractors, and certain private employers. The Fair Labor Standards Act is a prime example of a use of this authority. Additionally, there is solid United States Supreme Court precedent to support both state-issued and limited federally-issued vaccine mandates during public health crises. 

Federal authority is generally limited by the Constitution to regulating conduct that crosses state lines and international borders, regulating the federal agencies and interstate commerce. This is why the new federal vaccine mandate only applies to large employers, federal agencies, federal employees, federal contractors, and hospitals that get federal funds. 

Who pays for the weekly COVID-19 testing, employee or employer?

The new federal mandate doesn't specify who pays the cost of weekly testing, so this issue will likely be decided by employers, subject to any local or state requirements. Some employers may pay the costs associated with testing, much like they would for an employee's drug test. Other employers may require the employee to bear some or all of the cost. Some employers may decide that the cost of weekly testing and verification is too much, and simply require all workers to be vaccinated. Employer policies are likely to vary from one location to another as a result of different state or local laws. Employers considering their options should ask a lawyer about their legal obligations.

Do I have to inform my employer if I test positive for COVID-19?

Employees are generally not required to disclose private health information and employers are usually better off not knowing that information. However, some companies' employment policies require that employees notify them if they become infected with the virus. Also, when it comes to a highly contagious virus like COVID-19, it is important to consider the big picture. Due to the high level of contagiousness of COVID-19, notifying your employer as soon as possible of either a positive test or even exposure to the virus will help ensure your fellow coworkers and employer can take appropriate steps to mitigate the risks and look after the health and safety of all workers, clients, and customers. 

While no law requires employees to volunteer this information without being asked, the EEOC has advised that it is legal for employers to ask all employees who come to a worksite whether they have COVID-19 or have any symptoms. Employers are legally allowed to refuse entry to workers who have COVID-19 or any symptoms.

The CDC has advised employees to immediately tell their employers if they test positive for COVID-19. In turn, employers may be required to provide paid sick leave to allow employees that test positive or develop symptoms to isolate and seek treatment. 

Are employees protected from retaliation for reporting violations of the mandate?

Yes. Under OSHA, as well as other federal and state laws, employees are protected from retaliation for reporting legal violations or suspected violations. Employers should not fire, demote, harass, reduce scheduling, or do anything else that can be construed as an adverse action against an employee in retaliation for filing a complaint with OSHA or another state or federal agency. 

For employers, facing an administrative complaint filed by an employee can be complicated. Before taking action, ask a lawyer about how to proceed to ensure one complaint doesn't lead to bigger legal problems.

Have more legal questions about the new mandate or other COVID-19 related issues? Visit our COVID-19 Legal Center or reach out to a Rocket Lawyer On Call® attorney.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

Erik Riegler
Erik Riegler
Senior VP, Legal and General Counsel

Erik has been involved with Rocket Lawyer as outside counsel since its formation in 2008 and as General Counsel since 2016. Erik has worked with technology companies in the San Francisco Bay Area since 1996, both in private practice and as General Counsel. Erik holds BA and JD degrees from UC Berkeley and an MS degree from the London School of Economics.

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