Episode 34: The President’s vaccine mandate

Unum employment law and compliance expert Ellen McCann joins guest host Nate Smith to explore what we know about the President’s vaccine mandate so far. She discusses which employees are covered, how the mandate will be implemented, prospects for litigation and what it all means for employers.

• The basics of President Biden’s plan. Many American workers will have to be vaccinated against COVID-19 to come to work. Some will have the option to be tested instead. (1:20)
• How the mandate applies to different employee segments. Employees at private companies with more than 100 workers will have to have proof of vaccination or submit to COVID-19 testing at least weekly to report to work. Federal executive branch employees, employees of federal contractors and most health care workers do not have the option to choose testing instead of vaccination. (2:36)
• What employers will have to do, specifically, to comply. Specifics will come from OSHA (the Occupational Safety and Health Administration), the Centers for Medicare and Medicaid Services (CMS) and a task force that has been established to develop rules for federal contractors. (4:58)
• What are the major outstanding questions and what do they mean for the employer response? A lot of questions remain unanswered right now. For example, if an employee has just had COVID-19, do they still have to be vaccinated or tested? (6:45)
• How will the ADA come into play? We expect to see a lot of requests for exemptions, which will generally be handled as requests for ADA accommodations. Employers will need to understand the ADA accommodation process, including accommodations based on sincerely held religious belief. (8:50)
• Are there any standards on how to evaluate requests based on religious belief? There are standards laid out in guidance from the EEOC (Equal Employment Opportunity Commission) as part of Title VII of the Civil Rights Act of 1964. (10:50)
• What do we know about the paid leave requirements in the President’s mandate? We don’t know exactly what the paid leave requirements for getting vaccinated or recovering from side effects will look like, but many states have enacted their own mandates and we expect to see some similar rules. (12:00)
• Is litigation expected? Yes. But employers will need to be ready to comply with some form of mandate, especially since states and municipalities have begun implementing their own mandates, or may be poised to do so if a federal mandate fails. (13:00)
• What considerations should employers think about when looking for solutions to help comply? Choose a trusted, reliable partner to help with this, one that has deep experience with federal compliance, especially concerning confidentiality of medical information. Compliance will be tricky, with numerous intersecting issues. Determining the validity of a disability or religious exemption is complicated, so you need more than a tracking solution, you need to partner with someone who has been in the industry for quite some time. (14:23)
• Additional resources: How the federal vaccine mandate may affect employers.