Biden Announces Federal Vaccine and/or Testing Mandates for Large Employers


Jim Reidy and Mark Ventola | September 10, 2021

With the recent spike in COVID-19 infections and concerns that those numbers could rise this Fall many employers had already considered requiring their employees to receive the vaccine as a condition of employment. Vaccine mandates, testing policies, mask requirements and remote work accommodations already presented challenges for employers who have been struggling to recruit and retain employees during these challenging times. On Thursday, September 9, 2021, President Biden added another layer of complexity to that debate when he announced via a proposed Executive Order his “COVID-19 Action Plan” entitled “Path Out of the Pandemic.”[1]

Biden’s Plan (the “Plan”) is six-pronged: (1) vaccinating the unvaccinated; (2) further protecting the vaccinated; (3) keeping schools open; (4) increasing testing and requiring masks; (5) protecting U.S. economic recovery; and (6) improving care for those with COVID-19.

The vaccinating the unvaccinated prong details vaccination, testing, and paid time off requirements to certain employers. That is the focus of this alert.

Who is Subject to the Vaccine or Testing Mandates?

The Plan applies to all private sector employers with more than 100 employees, certain healthcare facilities, the federal government, contractors that work with the federal government, and certain schools.

What Are the Mandates?

Private Sector Employers with 100 or More Employees

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is tasked with developing the actual rules, but the Biden Administration has provided the highlights of the forthcoming rules that would impact as many as 80 million workers:

  • Workforce must be fully vaccinated or unvaccinated workers must produce a negative COVD-19 test at least once per week before reporting to work;
  • Employers must provide paid time off to get the vaccine and, as necessary, recover from the shot;
  • OSHA will issue an Emergency Temporary Standard (ETS) to implement the new rules; and
  • Up to $14,000 in penalties per violation.

Healthcare Employers

The Center for Medicare and Medical Services is working to develop their own rules that will impact approximately 17 million healthcare workers at roughly 50,000 healthcare providers, including:

  • Vaccine mandate for all healthcare workers at Medicare and Medicaid Participating hospitals, including clinical and non-clinical staff;
  • No testing opt-out; and
  • Employers must provide paid time off to get the vaccine and, as necessary, recover from the shot.

Federal Government and Contractors

These requirements were already in place via Executive Order:

  • Vaccine mandate for all federal executive branch workers and contractors that do work with the federal government;
  • No testing opt-out; and
  • Employers must provide paid time off to get the vaccine and, as necessary, recover from the shot.


The Department of Health and Human Services will also be issuing rules for roughly 300,000 school employees to include:

  • Vaccine mandate for Head Start Programs, Department of Defense Schools, and Bureau of Indian Education-Operated Schools; and
  • No testing opt-out

Again, the full impact of these forthcoming rules is unclear and the effective date is currently unknown.

Other Business Considerations Under the Plan

  • If a covered employer is also a large entertainment venue, President Biden is encouraging those businesses to also apply the vaccine or testing mandate to customers.
  • Interstate travel mask requirements remain in place.
  • Masking requirements on federal property remains in place.
  • Small businesses will be provided additional federal support.
  • President Biden is encouraging all state governors to require vaccinations for teachers and school staff.
  • The Department of Education is assessing its ability to ensure state and local governments are providing all students an opportunity to learn full-time and in person, including investigating states that have prohibited mask mandates in schools.
  • Schools are encouraged to regularly test students, teachers, and staff as recommended by CDC guidelines.

If You’re an Employer, What Do You Do Now?

  • First, you should determine if you are a covered employer, and if so, under which category under the Plan.
  • If you are a covered employer, survey your workforce as to vaccination status, if you have not done so already.
  • If you are a covered employer, you should familiarize yourself with the Plan and consider your options until the regulations and compliance deadlines are announced.
  • While waiting for the new regulations be sure your COVID-19 screening and workplace safety policies are up to date with CDC guidance, OSHA standards and state law requirements.
  • If you currently have a vaccine mandate in place or will adopt one under the Plan be sure that you have a process to review and evaluate exemption requests (medical and religious) as outlined in EEOC vaccine mandate guidance.
  • Consider whether a vaccine mandate or weekly testing of unvaccinated employees makes more sense for your workforce.
  • If you are a covered employer, you should develop a plan for implementing those policies, including appropriate communications with your employees.
  • You should consult an employment lawyer if you have questions on forthcoming rules or need guidance on how to comply.
  • And finally, while legal challenges to the Plan have already been announced, if you are a covered employer, it is best to be prepared to comply with the Plan if it proceeds as proposed.

There remain many unanswered questions about the Plan and we will provide additional guidance as more information becomes available.

[1] The full plan can be found here:

This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Sheehan Phinney’s employment group is available for questions about how this may impact your organization and this topic will be covered in the upcoming (September 15th) webinar offered through the NH Tech Alliance HR Exchange: Update on Employer COVID-19 Vaccine Mandates. Register here: September Human Resources Exchange – Update on Employer COVID-19 Vaccine Mandates

Acknowledgment: Our thanks to Nicole Forbes for her work on this Client Alert.