Here's Why Your Company Is Requiring COVID Vaccines Ahead of a Government Mandate

In early November, the White House announced details of a COVID-19 vaccine mandate affecting companies with over 100 employees. The deadline for companies to comply was originally January 4, 2022. But now that may be changing.

By January 4, companies were required to make sure employees completed their COVID-19 vaccination series or would submit to regular COVID-19 testing. Employers found not in compliance with enforcing the mandate could face heavy fines.

However, last week the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay, which halts implementation of the mandate for now. However, the ruling is not final. Legal experts said the issue will likely be settled by the Supreme Court, which has a strong history of supporting vaccine mandates. Plus, employers can implement their own mandates, which many already have.

“The constitutionality of government-imposed vaccine mandates [was] addressed long ago in two key Supreme Court decisions,” Marc Sherman, a JustAnswer legal expert and a partner at Conway Farrell, told Verywell. “Generally, these decisions concluded that these governments may tell people to get vaccines—unless they belong to an exempt group—or face a penalty.”

The Government Mandate’s Status 

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to curb COVID-19 transmission in the workplace. The ETS required employers with 100 or more employees to ensure that each worker is fully vaccinated by January 4, 2022, or that unvaccinated staff test weekly for COVID-19. 

On November 12, however, the U.S. Court of Appeals for the Fifth Circuit ordered OSHA not to enforce the mandate until further notice. 

Under the rule, if implemented, companies could be fined up to $13,653 per violation. To avoid such fees, employers would have to either take disciplinary action or terminate employees not in compliance. Employers were responsible for having their vaccine policy plans in place by December 5. And any unvaccinated workers were required to wear masks as of that date.

Now the mandate is in legal limbo.

“The mandate has been challenged in almost every other circuit,” Sherman explained. “All of these challenges are going to be consolidated into one case and assigned randomly to a single circuit court, which will decide whether the ETS is enforceable, whether it should be vacated, modified, suspended, etc. Whatever the decision is, the matter will undoubtedly move on to the Supreme Court, which will be the final arbiter.”

Sherman said two key Supreme Court decisions set a precedent for this case: Jacobson vs. Massachusetts in 1905 and Zucht v. King in 1922. The Jacobson case concluded that states had the power to pass vaccine laws to protect citizens. Back then the threat was smallpox. The Zucht case then upheld that decision.

“Whether the government and private enterprises can impose vaccination mandates is not a novel issue,” Sherman added. “It should be obvious to any parent who ever had to scramble to gather his/her child’s vaccination records and send them to camp or school.”

When Should You Expect a Mandate?

The ETS, if implemented, allows for employers to adopt one of two policies. Employers can mandate that all employees, with certain exceptions, get vaccinated for COVID-19. Or employers can mandate that employees get vaccinated and require those unwilling to get a jab to test regularly for COVID-19 and wear masks at work.

“Employers have the discretion to choose which type of policy to implement,” Zachary T. Zeid, an attorney in the labor and employment practice at Pullman & Comley, told Verywell. “Employees must comply with whichever type of policy the employer elects or face discipline/termination.”

Under either policy certain exemptions would apply, Sherman said.

"The policy would not apply to those for whom a vaccine is medically contraindicated, those for whom medical necessity requires a delay in vaccination, or those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement,” he explained.

For purposes of the mandate, a person would be considered vaccinated after receiving the second dose in a two-dose series, such as with the Pfizer-BioNTech or Moderna vaccines, or a single dose with the Johnson & Johnson jab. 

Employees would need to receive their first Moderna vaccine by December 7. They’d need to receive their first Pfizer dose by December 14. And they would need to get a Johnson & Johnson vaccine by January 4 to comply with the original deadline.

If implemented, the ETS would require that employers provide reasonable time during work hours for employees to receive a vaccine. That paid time off cannot count against your paid sick or vacation leave. Employers would also have to allow for the use of accrued paid sick leave for employees who need time to recover from any vaccine side effects, too. And you should not have to take vacation time for side effects unless an employer does not specify between types of paid leave.

Employees who refuse to get vaccinated may need to add a new expense to their budgets if the ETS takes effect.

“OSHA has effectively left the decision regarding who pays for the testing to the employer,” Zeid explained. “In light of this, most employers are requiring employees to cover the full cost of testing. Although some have opted to pay some or all testing-related costs as an added incentive to retain employees in a tight labor market.”

Employer Mandates May Take Effect Anyway

Despite the temporary pause, experts say businesses may be forging ahead with internal mandates anyway.

“It would be prudent for businesses to hammer out their policy decisions and set up the logistical frameworks now so that their mandates will be ready to roll out when/if required,” Sherman said. “This is what I advise as a legal expert.” 

James A. Hayward, PhD, ScD, president and CEO of Applied DNA Sciences, a company that helps businesses with testing and vaccination logistics, agreed.

“Many law firms are advising their client companies to get those written plans in place now,” he told Verywell. “[That way] compliance can begin as soon as the 4th of January and company management can prove that they did an adequate job of planning.”

Employers can enforce their own COVID-19 vaccination requirements, independent of the ETS. Sherman explained that most workers are “at-will” employees.

“Even without any mandate, it is an employer’s prerogative to hire and terminate such employees at will—that is, with or without cause," Sherman said. However, certain protections apply. 

“An employer can obviously discipline or terminate an employee for failure to abide by the employer’s policies,” he explained. “This is no less true for an employer’s vaccination policy.” Therefore, companies do have the leverage to enforce mandates, whether government-imposed or not.

“The available COVID-19 vaccinations have proven safe and effective at significantly reducing the chances of hospitalization or death resulting from COVID-19,” Zeid concluded. “Being vaccinated also reduces the risk of contracting or spreading COVID-19 in the workplace, at home, and out in the community.” 

The information in this article is current as of the date listed, which means newer information may be available when you read this. For the most recent updates on COVID-19, visit our coronavirus news page.