Susan Gross Sholinsky, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360, in “4 Questions Employers Have About Biden's Vaccine Mandates.” (Read the full version – subscription required.)

Following is an excerpt:

An aggressive series of COVID-19 vaccine mandates by President Joe Biden is raising numerous questions for employers, including who will foot the bill to test unvaccinated workers and what the future holds for their vaccine incentives. 

Biden on Thursday unveiled his administration's latest effort to boost the number of people who are vaccinated, dubbing it the "Path Out of the Pandemic." The multipronged plan includes multiple vaccination mandates that cut across both the public and private employment landscape.

The first vaccination mandate, a pair of related executive orders, requires federal employees and contractors to be vaccinated, with certain exceptions, such as relevant disabilities or religious objections. The orders eliminated an exception to a previous July vaccination mandate for federal employees and contractors that had allowed them to opt out if they wore masks, socially distanced and were tested for COVID-19 at least weekly.

The president on Thursday also directed the U.S. Department of Labor's Occupational Safety and Health Administration to craft a regulation that requires all businesses with over 100 employees to mandate vaccinations for their workforces, or have workers show a negative test for the virus at least weekly. That requirement should cover about 80 million people, or two-thirds of all U.S. workers, according to the White House. …

Here, experts discuss challenges that the president's latest vaccine push will pose for businesses. …

Who Gets Counted Toward the 100-Worker Threshold?

For businesses that may fall within the purview of the regulation OSHA ultimately develops, a key question that is coming up is who employers should include in their employee head count, according to Susan Gross Sholinsky, a member at Epstein Becker Green.

Sholinsky said she has already received those types of questions from companies that are hovering near the 100-worker threshold, including whether part-time workers should be counted the same as full-time employees or whether to include contractors as part of a head count.

While Sholinsky said her assumption is that there will be guidance from regulators in the near future, employers would likely have to take cues from other laws that involve counting employees, like the Worker Adjustment and Retraining Notification Act, if no new guidance materializes. …

Who Gets the Bill for Tests? …

Employers that may suddenly find themselves bound by a federal vaccination-or-testing requirement could face uncertainty over whether they will have to cover the potentially expensive cost of testing unvaccinated workers at least weekly or whether the government, or even workers, will instead pick up the tab. …

Sholinsky noted that some states have more detailed expense reimbursement laws than others, meaning that a company's location could also affect the calculus as far as paying for tests.

"Some of them even have specific rules for medical tests," Sholinsky said. "The answer to that question ... may differ depending on state law."

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