Biden Administration Implements Vaccine Mandates

by Ken Schramko, IPC senior director, North American Government Relations

Key Summary

• OSHA issued an Emergency Temporary Standard requiring large employers to ensure vaccinations or weekly testing
• Companies with over 100 employees must comply with most ETS requirements by December 5 and testing rules by January 5
• Federal contractors face an even stricter mandate under EO 14042 with no testing alternative
• The mandates could affect more than 84 million employees and significantly increase vaccination rates
• Compliance rules for federal contractors remain unclear and may require broad flow down to subcontractors
• IPC supports vaccination efforts but has concerns about overreach and unclear requirements

In a bid to get more people in the United States vaccinated against COVID-19 and decrease the spread of the virus, the Biden administration has announced that it will enforce a new mandate on vaccinations for U.S. companies with over 100 employees.

The new mandate comes in the form of an Emergency Temporary Standard (ETS) issued on November 5, 2021 by the U.S. Occupational Safety and Health Administration (OSHA). To comply, employers must ensure all requirements of the ETS, other than testing for employees who have not completed their entire primary vaccination, are met by December 5, 2021, 30 days after publication. And employers must ensure compliance with testing requirements for employees who have not received all doses required for a primary vaccination by January 5, 2022, 60 days after publication. Employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that for willful or repeated violations.

It is estimated that the requirement will apply to over 84 million employees at 1.9 million private-sector employers. OSHA estimates that 31.7 million of covered workers are unvaccinated and 60 percent of employers will require vaccinations, up from 25 percent today, resulting in another 22.7 million employees getting vaccinated.

In a related decision, U.S. President Joe Biden, on September 9, 2021, issued Executive Order (EO) 14042 that requires federal contractors to be vaccinated, but without the option of weekly COVID-19 testing. The EO is separate from the OSHA ETS, but in an EO fact sheet it noted that the OSHA ETS deadline for federal contractors to meet the vaccination requirements has also been extended until January 4, 2022.

The EO defines "federal contractor” very broadly and much is still unclear about the rule, but it directs federal agencies to ensure that contracts include a clause requiring contractors and their subcontractors to comply with all guidance for workplace locations, including vaccination of employees except in limited circumstances. The order does not apply to subcontracts solely for the provision of products, and yet, under guidance issued by the Safer Federal Workforce Task Force, federal agencies are being encouraged to make contractors flow down the vaccine requirement to all subcontractors regardless of the exemption.

IPC supports industry vaccination initiatives, among other efforts by government to protect public health. However, we are concerned about the potential overreach and lack of clarity associated with the mandates on federal contractors.