For employers, the devil will be in the details of Biden's new vaccine mandate, an employment law expert explains
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- President Biden announced employers of more than 100 people must mandate vaccines or weekly COVID-19 tests.
- Insider spoke to an employment law expert about the potential legal challenges that could arise.
- "The questions and challenges are likely to come from the details," Domenique Moran told Insider.
- See more stories on Insider's business page.
Following the Biden administration's announcement that employers with more than 100 employees will be required to mandate vaccines or weekly testing - a move that will impact more than 80 million workers- an employment law expert told Insider that the devil is in the details.
On Thursday, President Biden announced a six-point plan to try to beat back a rise in COVID-19 cases and hospitalizations and to increase the country's vaccination rate. This includes enforcing fines of up to $14,000 per violation for employers that ignore the mandates.
Biden announced COVID-19 vaccine requirements for federal employees, contractors of federal agencies, and staff at all healthcare facilities that receive federal funding from Medicare or Medicaid. Unlike employees at private companies, these workers would not have the option to get routinely tested as an alternative to being vaccinated.
"We could see a fair amount of challenges regarding the details - who is going to provide testing, who is going to pay for it, are employers going to be required to pay people for the time they spend testing?" Domenique Moran, an employment lawyer with Farell Fritz, told Insider.
Business Roundtable, a lobby group including Amazon, Walmart, Apple, Google, and Home Depot, said in a statement Thursday that it "applauds" the plan requiring companies with over 100 workers to mandate vaccines or weekly tests.
However, as the Department of Labor and its Occupational Safety and Health Administration (OSHA) drafts its emergency temporary standard to carry out the mandate, Moran insisted that the language of the mandate will dictate the potential legal challenges from employers.
"We got a very high-level vaccine or test mandate, the questions and challenges are likely to come from the detail," Moran said.
"For the OSHA rule to be enforceable, employers need to be given time and they're going to need clarity on expense - burdening businesses with cost of vaccine, testing, and time off without federal support could undermine the economic wellbeing for businesses," Moran said.
In April, the Biden administration implemented a paid leave tax credit, promising to cover costs necessary for businesses with 500 or fewer employees to "to provide full pay for any time their employees need to get a COVID-19 vaccination or recover from that vaccination." And on Thursday, Biden said that qualifying employers would be required by the new mandate to provide paid time off for their employees to get vaccinated.
That credit expires on September 30, 2021, and Moran said that employers may need an extension given the new plan.
Another scenario that Moran described was how the one hundred employee mark for a business is defined by the OSHA ruling.
"There is a question regarding what are 100 employees, does the business have 100 employees always, or seasonally?" Moran said, adding that the order could leave questions open around how full and part-time employment are counted.
Politically, during the limbo period before the language has emerged, high-ranking GOP members have promised to sue the Biden administration for its latest mandate, which vaccine law experts say is likely to fail.
Overall, from an employer side, Moran said that challenges on the constitutional merit of the mandate will be incredibly difficult.
"Because here is a built in accommodation for those who don't wish to be vaccinated, I think the fundamental policy articulated is less subject to be challenged," Moran said.
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