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Biden Administration Announces Emergency Order Mandating COVID-19 Vaccine in the Workplace
By Burnham Compliance
Burnham COVID-19 Vaccine

Yesterday, President Biden announced mandatory COVID vaccinations for Federal employees and large employers. The President has directed the Occupational Safety and Health Administration (OSHA) to draft a new emergency rule requiring all businesses with 100 or more employees to ensure all of their workers are either tested for COVID once a week or be fully vaccinated.


  • Federal executive branch employees and members of the armed services, among others, including federal contractors. Applicable federal employees will not be provided the option for weekly testing in lieu of vaccination.
  • Healthcare workers at hospitals and facilities who receive Medicare or Medicaid reimbursement.
  • Companies with 100+ employees: Employees must be either fully vaccinated or subject to weekly testing.

The emergency rule is expected to impact up to 80 million Americans. Companies that fail to comply may be subject to severe penalties. In addition, employees must be given paid time off to get vaccinated and recover from any vaccination-related side effects.


You might be asking yourself “what does this mean to me and my company?” Unfortunately, there are many questions that remain to be answered or provided by OSHA, including:
  • What’s the timeline for implementation?
  • How is the 100-employee count determined?
  • How will this impact your work-from-anywhere employees?
  • Will there be exemptions and what will they be?
  • Who is going to pay for ongoing COVID-19 Testing?
  • How do I find a third-party vendor to administer COVID-19 Testing?
  • How will I be able to collect proof of vaccination and confirm testing status?
  • What are the implications of employer non-compliance?


Large employers affected by this new rule should keep this mandate on their radar in order to prepare for compliance and employers with less than 100 employees that are interested in their own vaccine mandate should consult with their legal counsel before moving forward. Some steps large employers can do now to prepare for compliance include:
  • Review OHSA requirements and procedures for asking employees to confirm their vaccination status.
  • Discuss with leadership upcoming compliance concerns.
  • Encourage and educate employees on how to get vaccinated.
  • Fine-tune the company’s accommodation policy until guidelines on the mandate are released.
Finally, employers should be proactive and communicate with their employees any potential upcoming changes to their workplace policies. Employers with significant numbers of unvaccinated employees could consider providing vaccine education materials and incentives to encourage them to get vaccinated in anticipation of these changes.

We also suspect that this mandate will make its way through the court system as it will likely be challenged. As this is a developing situation, we will continue to monitor this issue and keep you updated on further clarification and direction as it comes out.


For additional information, please contact your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com.

Burnham Benefits does not engage in the practice of law and this publication should not be construed as the providing of legal advice or a legal opinion of any kind. The consulting advice we provide is intended solely to assist in assessing its compliance with the Patient Protection and Affordable Care Act and other applicable federal and state law requirements, and is based on Burnham Benefit’s interpretation of federal guidance in effect as of the date of this publication. To the best of our knowledge, the information provided herein, and assumptions relied on, are reasonable and accurate as of the date of this publication. Furthermore, to ensure compliance with IRS Circular 230, any tax advice contained in this publication is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.