In an effort to combat the continuing surge of COVID-19 in the United States, including the more contagious Delta variant, on September 9, 2021, President Joe Biden announced a series of aggressive vaccine mandates that will affect millions of workers and their employers throughout the nation.
The President has issued an Executive Order that all federal employees and employees of government contractors must be vaccinated. This is a change from a previous order that federal employees must either be vaccinated or submit to weekly testing. The new order removes the option for federal employees to forgo the vaccine if they are tested weekly. The President also ordered that all health care facilities that receive federal funding (e.g., Medicare and Medicaid) must also require their employees to be vaccinated.
Although the Executive Branch’s authority to require federal employees to be vaccinated is supported by legal authority, there is not legal precedence for an Executive Order to normally affect private businesses and employers. However, the President’s Executive Order takes the unique path of ordering the Occupational Safety and Health Administration (“OSHA”) to implement a rule for private businesses with 100 or more employees to require their employees to be vaccinated or undergo weekly testing. This forthcoming OSHA requirement will cover approximately 80 million workers. Businesses that do not comply will face substantial fines from OSHA.
OSHA has a long history of rulemaking and enforcement related to infectious diseases and viruses in the workplace. Thus, this proposed regulation is not without precedent.
It is unclear when the vaccine requirements will take effect. OSHA is expected to issue the rule “in the coming weeks,” according to the White House. Implementation could then range from weeks to months, as the rulemaking process will dictate the timeline.
Sutin’s lawyers anticipate this Order to affect a number of New Mexico businesses based on their size and status as federal contractors. Lawsuits challenging the Order have already been threatened by businesses and politicians, leading to the expectation the Courts will have input into the final implementation of this Order.