There are more questions than answers for employers facing President Joe Biden's upcoming vaccine mandate against COVID-19, including who will be prosecuted for enforcing rules and for counting, legal experts say.
Mr. Biden announced last week that the Occupational Safety and Health Administration will in the coming weeks introduce an emergency standard that would provide details of the plan that experts say could affect up to 100 million workers and cost employers up to $ 14,000 in fines per violation.
According to the President's disposition of the mandate, workers in companies with more than 100 employees will need to be vaccinated or undergo weekly COVID-19 testing.
But with many details left to leave, employers have many questions about their responsibilities and what costs they will bear.
“When? What are the parameters? There are many major problems, says Randi White, Minneapolis-based partner with Spencer Fane LLP, who said last week's announcement sparked calls from employer customers struggling with issues such as who should pay for the weekly test, what proof of vaccination will be required and what other administrative costs are involved, such as keeping track of any booster shots and the task of monitoring exceptions.
The administration did not set a timeline for OSHA to implement the emergency standard. When Biden, one day after its inauguration in January, called on OSHA to create an emergency standard for workplace safety at COVID-19, the agency took more than four months before a standard came into being. Eric Conn, Washington-based founder of Conn Maciel Carey LLP, said in an email that he expects a more compressed timeline for the vaccine standard given the urgency of the president's speech.
In an email to customers, Conner said that according to Mr. Biden's plan may be responsible for paying leave for the employees to be vaccinated and any recovery time. But he said the test burden could fall on employees who, according to the president's action plan released after his speech, would have to "produce a negative test result at least once a week before coming to work."
"We could … feel in President Biden's tone that he was quite tired of non-vaccinated individuals," Conn says in his email to customers. Having employees tested at the expense of their employer rather than being vaccinated would try to undermine the program to encourage vaccination, he said.
Elizabeth Wylie, a Denver-based partner in work and employment practices for Snell & Wilmer LLP, said that employers who have already started mandates are also wondering if their own plans would be sufficient to meet the upcoming federal requirement.
"Employers who have already gone through the pain of a vaccine mandate and managed employee relapse, they really do not want to return to it," she said.
Ms. Wylie said, however, that employers who are facing lawsuits due to individual workplace assignments may be fired from legal challenges. At least one set of plaintiffs – 51 workers at the Henry Ford Health System in Detroit – have dropped their suit in the wake of the president's announcement, according to media reports.