What Businesses Need to Know About COVID-19 Vaccine Mandates

Here's what the Biden Administration's COVID-19 vaccine mandate means for small businesses and what their obligations are as employers.

Air Date: November 10, 2021

Moderator: Jeanette Mulvey, Editor-in-Chief at CO—, U.S. Chamber of Commerce

Featured Guests: Glenn Spencer, Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce, Marc Freedman, Vice President, Employment Policy

The Biden Administration's recently announced COVID-19 vaccine mandate for businesses will take effect in the coming weeks and many business owners are wondering how it might impact their workforce. The Department of Labor’s Occupational Safety and Health Administration (OSHA) has developed an Emergency Temporary Standard (ETS) for employers with 100 or more employees, which mandates that employees must either receive COVID-19 vaccinations or produce weekly negative tests before coming to work in person.

In a recent Small Business Update event, Jeanette Mulvey, CO— Editor-in-Chief, interviewed two U.S. Chamber of Commerce employment policy leaders about the vaccine mandate and they break down what it exactly means for small businesses.

OSHA’s Vaccine Mandate Will Apply to Private Sector Businesses With Over 100 Employees

OSHA’s vaccine mandate applies to most private businesses with more than 100 employees (including those in part-time roles), notes Glenn Spencer, SVP for Employment Policy at the U.S. Chamber of Commerce.

“What it will require is that you take records of who is vaccinated and is not vaccinated, and that you get those non-vaccinated employees vaccinated by the date in the regulation, which is January 4,” said Spencer.

While this is a requirement for businesses that meet the mandate’s standards, other businesses can adopt these practices as well. For instance, if a small employer with less than 100 employees wants to implement this mandate, they can do so.

“A company can always require vaccinations,” Spencer added. “If that's the course they choose to go to, they can also avail themselves of the testing option … Just because you're under a hundred employees doesn't mean that that option goes away from you.”

The Vaccine Mandate Will Require Full Vaccination or Weekly Testing and Masking in the Workplace

The vaccine mandate will ensure employees are either fully vaccinated or are taking other precautions to avoid the spread of COVID-19.

“For an employee who refuses to get vaccinated, you can allow for a testing option here,” Spencer explained. “What that would mean is [the] employee would have to get tested at least every seven days … [and] start wearing a mask in the workplace.”

If they refuse to do that, he continued, you might go over possible accommodations you can make for them, like allowing them to work remotely.

However, “your options start to dwindle if you have someone who really refuses to either get a vaccine or take advantage of the testing," Spencer said.

Employers May Have to Cover the Cost of Weekly Testing

Many employers worry that under this mandate they will have to cover the cost of weekly testing for employees who choose not to get vaccinated. Unfortunately, this might be the case for many business owners.

“The ETS says that employers may have employees cover the cost of being tested,” said Marc Freedman, VP for Employment Policy at the U.S. Chamber of Commerce. “However, if an employee qualifies for a religious or medical exemption, at that point, the employer must absorb the costs of the testing.”

This can be a financially overwhelming responsibility for a small employer who doesn’t have the budget to cover these ongoing expenses.

Fully-Remote Employees Are Exempt From Vaccinations and Testing

Another important thing businesses should understand is that if an employee works 100% remotely, meaning they have no contact with other employees or customers, they can be exempt from both vaccination and testing. However, they still count towards the 100 employee threshold.

“But that's a very strict rule and that means they never have any contact with anybody in the workplace or customers,” Freedman said.

As stated earlier, some employers might allow their in-person employees to go fully remote if they do not wish to follow the vaccine mandate’s requirements. Offering this option to employees is up to the employer, and employers are not required to make this accommodation.

Read more info about the vaccine mandate ETS from the U.S. Chamber here.