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September 15, 2021

The biggest unanswered questions about Biden's new vaccine requirements

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    Following President Joe Biden's announcement of new vaccination rules for millions of workers across the country, many businesses are requesting clarification about the rules' requirements and how to implement them for their employees, Lauren Hirsch reports for the New York Times.

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      Biden last week announced new rules requiring most federal workers, health care workers, and some private-sector employees to get vaccinated against Covid-19—actions that could affect up to 100 million workers, according to a senior White House official.

      Under the new rules, Biden said private-sector employers with at least 100 employees will have to either require vaccinations or weekly testing under a rule that will be drafted by the Occupational Safety and Health Administration (OSHA). Employers that violate the rule will be penalized $14,000 per violation, according to an administration official.

      Businesses raise questions over the mandate's requirements and how to enforce them

      According to Hirsch, several major business groups have expressed support for Biden's vaccine mandate.

      For instance, the U.S. Chamber of Commerce, the largest business lobbying group in the country, said it "will work to ensure that employers have the resources, guidance and flexibility necessary to ensure the safety of their employees and customers and comply with public health requirements." The Business Roundtable, another major business advocacy group of CEOs, has also said it "welcomes" the Biden administration's actions on vaccine mandates.

      However, many businesses have also expressed concerns over the new vaccine rules, with many unsure about what the rules will mean for their employees and how to implement them, Hirsch reports.

      Geoff Freeman, president of Consumer Brands Association, a trade group that represents around 2,000 brands, said the new requirements have raised "vexing issues" for employers as they work to develop vaccination policies.

      To address these issues, Freeman on Monday sent a letter to President Biden requesting clarification on how employers should handle the new vaccine requirements.

      In the letter, Freeman shared 19 questions that represented a "small sampling" of those raised by the trade group's members. The questions cover details about vaccination, testing, and operational policies, including:

      • What types of proof-of-vaccination documentation will be accepted, and are booster shots also required?
      • Do employees have to be fully vaccinated to work?
      • Will the requirements apply only to vaccines that are fully approved by FDA?
      • Is there a testing standard that needs to be met to comply with the requirement for negative test results?
      • What is appropriate documentation for a negative Covid-19 test result?
      • When will requirements be formally issued, and what is the timeline for employers to comply?
      • How will the mandate affect employers in areas with collective bargaining agreements?

      The other questions in the letter reference similar issues, Hirsch reports, such as whether the government or individual businesses are responsible for tracking vaccinations, who will pay for testing, and whether waivers will be allowed if employee absences or attrition cause disruptions in the supply chain.

      Frustration with the pace of action

      In a separate interview, Freeman said that businesses are also concerned about the government's slow pace in developing policies' details, which has been an ongoing problem throughout the pandemic, compared to the quick decisions many private businesses tend to make.

      "For 19 months, we’ve been working with either the Trump administration or the Biden administration and all of the agencies involved in this," he said. "And the simple truth is that they have been slow to keep up with the pace of change."

      Freeman added, "All of us want to get to the other side of this thing as quickly as possible. It’s not going to work in this scenario unless an entity like OSHA can move at the pace of the business environment."

      Details on the requirements remain sparse

      So far, a White House spokesperson has said the specific requirements for the mandate are still being determined and that more guidance will be provided for affected federal contractors on Sept. 24, Hirsch reports. Jeffrey Zients, the White House's coronavirus response coordinator, has also said OSHA's rule-making process will take weeks to complete.

      According to Ian Schaefer, a partner at Loeb & Loeb who specializes in labor issues, this means "there are more questions than answers" at this point.

      In the meantime, companies are calling lobbyists and lawyers for more insight into the situation, Schaefer said. Many are discussing how to implement the vaccine requirements in their workplaces—despite not yet knowing what they might entail.

      "In the absence of actionable intelligence that gives a little bit more guidance and direction, I think they’re sort of controlling for what they can control, which is a lot of internal politics at this point," Schaefer said. (Hirsch, New York Times, 9/13)

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