Vaccine mandate whiplash leaves U.S. employers ‘totally confused’

The legal battles and rising COVID-19 cases have left employers confused on how to comply.

President Joe Biden‘s administration announced in November that starting Jan. 4, American workers at companies with 100 or employees will need to be vaccinated against COVID-19 or get tested weekly. But legal battles and rising coronavirus cases have left employers confused on how to comply. 

Attorneys general in 11 states have filed suit against Biden’s administration, challenging the new requirement. The Occupational Safety and Health Administration (OSHA) said companies that fail to enforce Biden’s mandate could face penalties of nearly $14,000 per violation, The Washington Post reported.

The Associated Press reported that the new requirements, first previewed by Biden in September, will apply to about 84 million workers at medium and large businesses, although it is not clear how many of those employees are unvaccinated. Tougher rules will apply to another 17 million people who work in nursing homes, hospitals and other facilities that receive money from Medicare and Medicaid. Those workers will not have an option for testing and will need to be vaccinated.

“My clients are totally confused as, quite frankly, am I,” said Erin McLaughlin, a labor and employment lawyer at Buchanan, Ingersoll & Rooney. “My sense is that there are a lot of employers scrambling to try and put their mandate programs in place.”

Per the Associated Press report, several large business groups complained about the timing of the mandate. Retail groups worried that the requirement could disrupt their operations during the critical Christmas shopping period. Others also said it could worsen supply chain disruptions.

US President Joe Biden, with Vice President Kamala Harris (L) (Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)

The rising COVID cases amid the spread of the omicron variant have added to the confusion, as well as the very definition of what it means to be fully vaccinated. Additionally, companies are uncertain if they will also be required to mandate boosters.

Dr. Anthony Fauci, Biden’s top medical advisor, said redefinition of what it means to be fully vaccinated against the potentially deadly COVID-19 is “certainly on the table.”

“There’s no doubt that optimum vaccination is with a booster,” Fauci said on CNBC’s Squawk Box.

“Whether or not the CDC is going to change that, it certainly is on the table and open for discussion. I’m not sure exactly when that will happen. But I think people should not lose sight of the message that there’s no doubt if you want to be optimally protected, you should get your booster.”

Amid the confusion over the Department of Labor’s vaccine mandate, many states and cities have opted to roll out their own vaccine rules, “as in New York City, where an option to test out of vaccine requirements isn’t allowed, while some, like Florida, have sought to undermine OSHA’s rule,” wrote The Washington Post

“Things are going back and forth literally in a matter of hours,” said Sydney Heimbrock, an adviser on industry and government issues at Qualtrics, a software that tracks employee vaccination status, per the report. “The confusion stems from the on-again-off-again, is it a rule or isn’t it a rule? The litigations, appeals, reversing decisions and making decisions.”

A federal judge paused Biden’s mandate from taking effect, but a federal appeals court panel in Cincinnati recently overruled the decision.

The White House said in a statement that “it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

This article contains additional reporting from The Associated Press

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