President Joe Biden announced new vaccination mandates on Sept. 9 for companies in the private sector with 100 or more employees. These mandates, which will affect more than 80 million Americans, will mean larger companies must have their employees receive the COVID-19 vaccine or undergo weekly testing to avoid penalty fines up to $14,000 per violation.
Additionally, an executive order will require all government employees and contractors to be vaccinated, with no testing opt-out. These mandates are being implemented in an effort to reduce the number of unvaccinated Americans and make the workplace safer for all employees.
The federal vaccination mandates may affect nearly two-thirds of the American workforce. With such a large number of employees affected, employers may be concerned about pushback when implementing the mandate. While some companies have been proactive in requiring COVID-19 vaccinations for all employees, others may be holding back for fear of litigation. However, the bottom line is this: while it’s still early and many things can happen from a legal standpoint, the federal vaccine mandate should reduce vaccine EPL claims exposures.
Experts do anticipate that individual states will challenge the mandates in court. As those lawsuits are with the federal government, it is not considered an employment practices liability risk for businesses. The details are still being hashed out, and the Occupational Safety and Health Administration has been tasked with developing an Emergency Temporary Standard (ETS) that will enforce the rule on all large employers. ETS measures, which are used to accelerate urgent rules, have only been used ten times throughout OSHA’s history. Courts have invalidated or stopped four of them and partially blocked a fifth. The process was last used in June 2021 to implement workplace safety rules in the healthcare industry to help prevent the spread of COVID-19.
The federal vaccination mandates will benefit employers in a few different ways. First, the mandates alleviate concerns upper management may have regarding employee lawsuits over the vaccine. The employers are following government instructions, therefore providing a safety net from litigation. Many employers likely already wanted to implement a vaccine mandate, and now they have federal backing for that decision.
Secondly, a vaccine mandate means more employees will be vaccinated, and thus companies can get back up and running with less EPL exposure. Since exposure is reduced, less exclusionary language is anticipated moving forward for EPL coverage.
Federal laws created by the U.S. Equal Employment Opportunity Commission protect employees from discrimination during the COVID-19 pandemic, including protection against retaliation for asserting their rights to be free from workplace discrimination. For instance, anti-discrimination laws keep employees safe from harassment due to age, race, color, religion, sex, disability, etc.
Even with the federal vaccination mandate, employers will still have to offer reasonable accommodations for employees with medical and religious objections to the vaccine. While there are some legitimate disability and medical reasons individuals cannot receive the vaccine, religious exemptions are going to be more difficult to prove. Only a small number of religious groups in the U.S. have theological objections to vaccines. The burden of proof will be on the employee to verify where their religion states that it excludes vaccination.
EPL coverage would protect employers from the exposure of disability discrimination and religious discrimination. It may also pick up defense coverage for Fair Labor Standards Act violations if the insurer provides that enhancement. These protections could help ease the stress that the pandemic has caused.
These new federal mandates are still in development, and it remains up in the air as far as what employers will be required to do. However, large employers should start preparing now by getting communications ready to explain the new vaccine requirements to their employees. These companies should also talk to their legal counsel to prepare for any legal concerns that could arise.
Jason Binette is EPL project manager for AmTrust EXEC, an insurance carrier that offers a variety of management liability products.