Vaccine mandates now required: What to know about Biden’s new rules

'We’re going to protect vaccinated workers from unvaccinated co-workers,' the president said Thursday.
By: | September 9, 2021

In one of the biggest moves yet in the effort to get Americans vaccinated against COVID-19, President Biden on Thursday unveiled new vaccination requirements that are expected to have major repercussions for employers.

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Biden announced he is directing the Department of Labor to draft a rule that will require all businesses with 100 or more employees to mandate that their employees get the vaccine or undergo weekly COVID testing. Companies that violate the rule could be subject to fines of $14,000 per violation, an administration official told CNN. The regulation, expected to be unveiled in full later this week by the DOL’s Occupational Safety and Health Administration, will affect about 100 million Americans.

The new measure will require employers to provide employees paid time off for receiving the vaccination.

“We’re going to protect vaccinated workers from unvaccinated co-workers,” Biden said during a press event Thursday unveiling the news.

The fact that the requirements apply across the board will give many employers the cover they were looking for ahead of rolling out mandates, says Devjani Mishra, shareholder at Littler Mendelson and a leader of the firm’s COVID-19 Task Force.

“Throughout 2021, we’ve seen that employers have been thinking very hard about whether to require workplace vaccinations, the ramifications this could have for their workplaces and whether they risk losing employees,” she says. “The Administration’s approach will help equalize the playing field and take some pressure off employers who have been concerned about moving too fast or too early in this important area.”

The move was part of Biden’s sweeping vaccine mandate plan revealed late Thursday, as the Delta variant continues to wreak havoc and drive support for vaccine mandates. Biden also announced that all federal employees and contractors must receive the shot.

The executive orders represent a more stringent federal approach to mandates: Starting in July, the federal government required that its more than 2 million employees either be vaccinated or undergo regular COVID-19 testing, with the new measure removing the testing option. Additionally, Biden is expected to extend the requirement to employees of federal contractors, encompassing about 5 million more people.

In a press conference earlier Thursday, White House press secretary Jen Psaki said employees and contractors will have 75 days to comply with the new orders. If they don’t, they will be subject to the “standard HR process” that can include counseling and “disciplinary action.” She noted there are “limited” opportunities for exemption.

“If you want to work in the federal government or be a federal contractor,” Psaki said, “you need to be vaccinated.”

Lorrie Lykins

Lorrie Lykins, vice president of research at the Institute for Corporate Productivity, says that, up until this point, the federal government’s strategy of allowing employees to opt out of vaccination in favor of testing, along with the ability to self-report vaccination status, had not been able to “guarantee safety.” With this new, more stringent approach, she says, the Biden administration is closer to that goal—and the shift will also “provide employers with more confidence in moving to require vaccination as a condition of employment.”

Steve Bell, a partner at law firm Dorsey & Whitney in its labor and employment practice, called Thursday’s move a “real game-changer for many employers,” predicting that the number of private employers that mandate vaccines is about to “increase exponentially,” even before the DOL news was announced.

Related: Can employees’ religious beliefs get them out of vaccine mandates?

“The fact that the largest employer in the U.S. is mandating vaccines will give comfort to private employers who have been hesitant to require vaccines,” Bell says. “It may also set the standard for what a reasonable employer should be doing in the face of this continuing epidemic.”

Vaccine mandates have been picking up throughout the summer, particularly after the FDA approved the Pfizer vaccine and in light of the ongoing concern about the more contagious Delta variant. Tech giants like Facebook, Google and Microsoft mandated the shots in July, but the trend is not limited to the tech industry—McDonald’s Walmart, United Airlines and more have all recently joined the ranks of companies requiring employees to be vaccinated.

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Related: These employers are requiring COVID-19 vaccines

Both employees and employers are also increasingly in favor of mandates. A recent survey from Qualtrics found that 60% of employees support vaccine requirements for in-person work, while a study released this week by Mercer revealed that nearly 65% of surveyed employees would prefer their employer implement a vaccine mandate.

On the employer side, Willis Towers Watson reports that 52% of employers either have a mandate in place or will by the end of the year—a stat that was released before Biden’s recent executive orders.

“The Biden administration requirement that all federal workers be vaccinated will help normalize vaccination and will make it easier for employers to move forward with vaccination mandates,” says Dr. Jeff Levin-Scherz, population health leader at Willis Towers Watson.

Jeff Levin-Scherz, MD, MBA

Levin-Scherz notes that many employers have taken significant steps to encourage employees to get the shot—offering flexible schedules and paid time off to get the vaccine, added leave if employees experience any side effects and even on-site vaccination clinics. But, about one-third of Americans between ages 18-64 remain unvaccinated.

“Unvaccinated employees represent both a clinical and a business risk for companies,” he says, noting that employers that have not yet mandated vaccines should weigh the potential risks associated with having unvaccinated employees working in in-person settings, including the potential of exposing other employees to COVID, especially those who are immunocompromised, and business interruptions associated with quarantines.

“Vaccination is the way out of this pandemic,” adds Lykins. “Without it, mutations like the frighteningly virulent Delta strain will continue to emerge.”

Jen Colletta is managing editor at HRE. She earned bachelor's and master's degrees in writing from La Salle University in Philadelphia and spent 10 years as a newspaper reporter and editor before joining HRE. She can be reached at hreletters@lrp.com.