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How Will the Vaccine Mandate for Employers Work, Exactly?

Photo-Illustration: by The Cut; Photos: Getty Images

Earlier this month, President Joe Biden announced a series of measures to combat COVID-19 more aggressively, including a mandate that many employers require their workers to be vaccinated or undergo weekly testing. Here’s what we know so far about how the mandate will work.

What exactly does the vaccination mandate require of businesses?

Private-sector businesses with 100 or more employees will need to require employees to be vaccinated or undergo mandatory weekly testing, which covers about 80 million people. The same requirement will apply to nearly all federal workers and contractors, covering several million more workers, as well as 17 million health-care workers in hospitals and other institutions that receive Medicare and Medicaid funding. All told, that’s about two-thirds of the entire U.S. workforce. The new law also says those businesses must offer employees paid time off to get vaccinated.

What if I work for a smaller company?

If you work for an employer with fewer than 100 employees, it won’t be subject to the mandate, although your employer might choose to implement a similar rule anyway. One thing the new rule does is give some cover to employers who’d already wanted to require vaccination but were worried about pushback from employees.

My company doesn’t plan to follow the mandate. What can I do?

First, keep in mind that the mandate isn’t in effect yet — so just because your company isn’t following it now doesn’t mean it won’t once it becomes law. That’s expected to happen in the next several weeks. After that, companies are likely to have a period of 50–90 days to comply.

But if your company ignores the law once it’s in place, you have a few options. One is to file a complaint with the Occupational Safety and Health Administration (OSHA), the federal agency that enforces workplace-safety laws and is charged with enforcing this one, or to your state’s workplace safety agency. Or, if you work in a health-care facility that receives Medicare or Medicaid reimbursement (which includes everything from hospitals to dialysis centers to home health agencies), you can file a complaint with the U.S. Department for Health and Human Services.

Another option is to team up with a group of your co-workers and advocate for your company to follow the law. A group can be harder to ignore than a single person, and there can be safety in numbers if you’re worried about retaliation.

Speaking of retaliation, the Occupational Safety and Health Act of 1970 prohibits employers from retaliating against employees for filing a safety or health complaint with OSHA or for raising a health and safety concern at work. The National Labor Relations Act also protects your right to discuss working conditions with your co-workers and organize with them to advocate for change within your company (although note that law’s protection only applies to nonmanagement employees).

We’re not covered by the mandate. Can we enforce it anyway?

Yes! Employers can legally require vaccines as long as the requirement is job-related and “consistent with business necessity.” “Business necessity” can mean that an unvaccinated employee would pose a threat to other employees, customers, or the public. That might not affect a remote employee, but it’s easy to argue it pertains to everyone else. (In fact, many employers, especially those in health care and education, have already been requiring immunizations of other kinds for years.)

Under the Americans With Disabilities Act, employers do need to make exceptions for people with medical conditions or “sincerely held religious beliefs” that mean they can’t be vaccinated, but in those cases, you can still require regular testing and other precautions. (More on what those can be in a minute.)

What if an employee’s medical or religious exemption claim seems … suspicious?

In the case of medical exemptions, federal law allows employers to request medical information from the person requesting the exemption, and then requires them to engage in “an interactive process” to determine reasonable accommodations. Importantly, the employer doesn’t need to accept the specific accommodation the employee is requesting; they can come up with alternate accommodations that meet the goal — including things like masking at work, keeping the employee isolated from others, changing their shift to minimize contact with others, or even having them take an unpaid leave of absence (as at least one airline is doing).

With requests for religious exceptions, an employer can legally question or contest a stated religious belief if that employer has an objective basis for believing the employee is being dishonest or that the objection isn’t actually based on religion. However, religious claims can be tough to disprove (in part because the law doesn’t limit its definition of a religious belief to those associated with an actual religion), and there can be legal risk to pushing back on them. But as with medical exemptions, the employer only has to offer a reasonable accommodation, not necessarily the one the employee prefers.

What if one employee’s accommodation request conflicts with another employee’s needs?

You might run into the problem of dueling accommodation requests — for example, if one employee can’t be vaccinated for medical reasons and another has a medical condition that makes it especially unsafe for them to work in an office with unvaccinated people. In those cases, the employer is required to enter into an interactive process with both employees to see if they can come up with accommodations that will solve the problem. For example, you might decide that one of them will work from home, or on a separate shift, or from a separate area of the office that the other won’t be permitted to enter. In some cases, there might be no way to accommodate both employees without what the law calls “undue hardship” to the employer, but legally they have to try working with both employees to see if they can find solutions first.

Can we refuse to hire candidates who aren’t vaccinated?

The rules for hiring are similar for requiring vaccination among your existing employees. You can indeed require vaccination when you’re hiring, as long as you allow medical and religious exemptions.

Can I ask a co-worker if they’ve been vaccinated, or is that rude?

It’s not rude to ask for information you need to protect yourself. “I’m being really careful — can I ask if you’re vaccinated so I can take precautions if you’re not?” or “Before we meet in person, can I ask if you’re vaccinated?” are perfectly reasonable questions to ask in a global pandemic. (That said, whenever you’re around people you don’t know well, it can be safer to assume one or more of them might not be vaxxed and take precautions accordingly.)

Order Alison Green’s book Ask a Manager: Clueless Colleagues, Lunch-Stealing Bosses, and the Rest of Your Life at Work here. Got a question for her? Email Her advice column appears here every Tuesday.

How Will the Vaccine Mandate for Employers Work, Exactly?