Despite continuing legal concerns, the federal government, New York City, and California have announced COVID vaccination requirements for their employees, with the federal requirement extending to on-site contractors. Meanwhile, the CDC’s new masking recommendations will require employers to rethink their reopening policies.
President Biden announced federal employees and on-site contractor employees must attest they have been vaccinated or be subject to twice weekly testing and work-related travel restrictions. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location and their physical distance from all other employees and visitors.
The administration will also take steps to apply similar standards to all federal contractors – implying both on-site and off-site federal contractor employees. A lingering question: will unvaccinated employees tell the truth?
Biden also encouraged employers to provide paid leave for employees and their family members to get vaccinated.
$100 to anyone who gets vaccinated? The President called on every state and local government to use American Rescue Plan funding to provide $100 to anyone who gets vaccinated.
A recent Department of Justice (DOJ) opinion determined “the Food, Drug, and Cosmetic Act does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.”
But the Americans with Disabilities Act and Title VII are still in play. Under the latest EEOC guidance, employers may require a COVID vaccination for all employees entering the workplace, if the safety-related standard for the mandate “is job-related and consistent with business necessity.” Employers must provide accommodations for workers who refuse to get the shot because of a disability or religious beliefs. See separate story on “Long-COVID,” now being considered an ADA disability in certain contexts.
Unions are divided: AFL-CIO President Richard Trumka said the labor federation supports vaccine mandates while American Federation of Teachers President Randi Weingarten said “vaccinations must be negotiated between employers and workers, not coerced.” The New York City union, representing 100,000 municipal employees, also opposes a vaccination mandate.
The new CDC masking guidance recommends vaccinated people wear masks in indoor public settings if they are in parts of the U.S. with "substantial or high transmission," among other circumstances. Employers should rely on the continually changing CDC map to determine where in the U.S. the recommendation applies (orange and red counties).
The guidance states fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID should be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.
Outlook: The number of Delta variant cases is expected to peak in late-October and then slowly decline through the end of the year.
