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Employers struggle to digest Biden’s proposed vaccine mandate


There are more questions than answers for employers bracing for President Joe Biden’s forthcoming COVID-19 vaccine mandate, including who will be charged with enforcing rules and footing the bills, legal experts say.

Mr. Biden announced last week that the Occupational Safety and Health Administration will, in the weeks ahead, introduce an emergency standard that would give specifics of the plan that experts say could affect upwards of 100 million workers and cost employers up to $14,000 in fines per violation.

Under the president’s outline of the mandate, workers at companies with more than 100 employees will be required to be vaccinated or submit to weekly COVID-19 testing.

But with many details still to be disclosed, employers have numerous questions about their responsibilities and what costs they will bear.

“When? What are the parameters? There are a lot of big picture concerns,” said Randi Winter, Minneapolis-based partner with Spencer Fane LLP, who said last week’s announcement triggered calls from employer clients who are grappling with such issues as who will pay for the weekly testing, what proof of vaccination will be required and what other administrative costs are involved, such as keeping track of possible booster shots and the task of overseeing exemptions. 

The administration did not set a timeline for OSHA to introduce the emergency standard. When Mr. Biden one day after his inauguration in January called on OSHA to create an emergency standard for COVID-19 workplace safety, the agency took more than four months to see a standard come into fruition. Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP, said in an email that he expects a more compressed timeline for the vaccine standard given the urgency in the president’s speech.  

In an email to clients, Mr. Conn said that under Mr. Biden’s plan they could be responsible for paying for time off for employees to be vaccinated and any recovery time. But, he said, the burden of testing could fall on employees, who under the president’s action plan released following his speech, would need to “produce a negative test result on at least a weekly basis before coming to work.”

“We could … sense in President Biden’s tone that he was pretty well fed up with non-vaccinated individuals,” Mr. Conn said in his email to clients. Allowing employees to be tested at the cost of their employer rather than be vaccinated would seek to undermine the program to encourage vaccination, he said.  

Elizabeth Wylie, a Denver-based partner in the labor and employment practice for Snell & Wilmer LLP, said employers who have already set mandates in motion are also wondering whether their own plans would be sufficient to satisfy the forthcoming federal requirement. 

“Employers who have already gone through the pain of a vaccine mandate and dealing with employee blowback, they really don’t want to revisit that,” she said. 

Ms. Wylie said, however, that employers who faced lawsuits as the result of individual workplace mandates might get a reprieve from legal challenges. At least one set of plaintiffs — 51 workers at Henry Ford Health System in Detroit — have dropped their suit in the wake of the president’s announcement, according to media reports.