WASHINGTON — President Joe Biden took his most aggressive action yet in the fight against the COVID-19 pandemic Thursday, ordering employers with 100 or more workers to ensure their workforce is entirely vaccinated or face weekly COVID testing.
In an address to the nation in which he outlined a six-part plan, Biden said his administration also ordered that all federal employees and employees of government contractors must be vaccinated.
Many GOP governors have come out in opposition to Biden’s orders and said they would file lawsuits once the orders go into effect.
Here’s what we know about the president’s new plan to help fight the pandemic.
What did the Biden administration order and is vaccine mandate unconstitutional?
Biden said the Department of Labor’s Occupational Safety and Health Administration would issue an “emergency temporary standard” that mandates employers with 100 or more workers require the vaccine or conduct weekly testing of unvaccinated employees.
The administration is also requiring employers with more than 100 employees to provide paid time off to allow workers to get vaccinated or recover if they are ill after the shot.
OSHA has the power to issue those standards until a permanent standard is developed when “workers are in grave danger” from exposure to toxic substances or agents or to new hazards, according to its website.
For example, in June, it issued an emergency temporary standard requiring health care employers to provide N95 masks and other personal protective equipment to some employees and ensure social distancing. The orders are subject to challenge in the U.S. Court of Appeals.
Who does the vaccine mandate cover?
The vaccine mandate covers all private employers with more than 100 employees, meaning it will generally apply to corporations and other large businesses. In all, more than 80 million workers are affected.
If workers choose not to be vaccinated, they would have to pass a weekly COVID-19 test to come to work.
Biden singled out some companies that already have vaccination requirements: United Airlines, Disney, Tyson Foods and “even Fox News.”
Who does it not cover?
Smaller private businesses with fewer than 100 people are not included in the mandate. However, Biden issued vaccination mandates for other workers as well. They include most federal government workers, all 17 million workers at nursing home facilities and hospitals that receive Medicare and Medicaid funds and staff of federal Head Start and Early Head Start programs.
In all, Biden said the mandates cover about 100 million Americans, or two-thirds of the U.S. workforce.
Biden also called for COVID-19- vaccines to be required to attend sports arenas, large concert halls and other venues where large groups of people gather. Yet he did not single out outdoor football games.
Who counts as a federal worker?
The vaccine order for the federal government requires all federal executive branch workers to be vaccinated as well as all employees of federal contractors.
It covers about 90% of approximately 4 million federal workers but does not apply to non-executive branch employees such as members of Congress or judicial employees.
In addition, the order covers federal departments and agencies that have already started to implement vaccination mandates: the military and other service members under the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institutes of Health.
Previously, Biden in July required federal employees show they have been vaccinated or undergo regular testing.
When will vaccine mandate start?
It was unclear on Thursday when exactly the requirements would take effect. OSHA is expected to issue the rule “in the coming weeks,” according to the White House, and implementation could follow a timeline similar to those in the public and private sectors. In some cases, those have ranged from weeks to months.
The exact timeframe will be dependent on the rulemaking process.
What about HIPAA? How can employers ask for this?
The Health Insurance Portability and Accountability Act, know as HIPAA, prevents health care professionals from sharing private health information without the patient’s permission. It does not apply to those outside of a health care setting, such as businesses and individuals, asking questions about a person’s vaccine status, experts say.
The Equal Employment Opportunity Commission previously issued guidelines in May that allow employers to require on-site employees be vaccinated, provided they don’t violate civil rights and disability laws. In July, the Department of Justice also announced that federal law does not prohibit federal agencies or private businesses from mandating vaccines.
What are the punishments for businesses that don’t comply?
Businesses that do not comply with Biden’s directive will face “substantial fines” up to $14,000, according to a senior administration official. The Labor Department’s Occupational Safety and Health Administration will enforce the fine.