LGN Partner Susan Ellingstad featured in MPR News

Susan Ellingstad

Biden’s vaccine mandates: What you need to know

Millions of Americans will be subject to new vaccine mandates issued by President Joe Biden, including more than 1.4 million workers in Minnesota.

The announcement this week comes as the highly contagious delta variant continues to sweep the nation, putting unvaccinated people at higher risk of hospitalization and death.

Biden only described his plan in broad strokes during a White House press conference Thursday, but the strategy is already drawing applause from some corners — and a lot of questions from others.

On one hand, the mandate gives employers who are hesitant to battle employees over vaccines cover, said Susan Ellingstad, a partner with Minneapolis-based firm Lockridge Grindal Nauen.

“I think there are a lot of employers who have really wanted to [issue vaccine mandates] and haven’t been able to take that step.” The mandates allow them to, said Ellingstad.

“This may be the green light that a lot of employers were waiting for,” she said.

But the mandate announcement is still murky as detailed rules about its implementation are hammered out, and that’s putting businesses on edge, said Minnesota Chamber of Commerce President Doug Loon.

“There’s a lot of questions that surround it from, how’s it going to be administered? Is this an unfunded mandate coming from the federal government? How is this testing going to work?” he said.

Loon also worries it will drive away workers.

“What does this mean to the marketplace? As far as workers, we know we’re short in almost every category, all across the state,” Loon said.

Here’s what you need to know about the new vaccine mandates:

Who will be required to get a shot?

The mandate applies to federal employees and contractors; people who work at businesses with 100 or more employees; health care workers at health facilities that receive Medicare or Medicaid; as well as teachers working in Head Start and in schools run by the Department of Defense and the Bureau of Indian Affairs.

According to the Minnesota Department of Employment and Economic Development, there are roughly 4,800 businesses and 1.4 million workers in Minnesota that would fall under this mandate.

On top of that, there are about 32,000 federal employees in Minnesota that would be required to get shots.

It’s not clear how many of these workers have already been vaccinated. And some large employers, including most of Minnesota’s large health care systems, higher education institutions and some counties have vaccine requirements already.

What about teachers?

It is possible that public school educators will be subject to the mandate.

Minnesota is among more than 20 states where private sector employees and public sector employees — including teachers — are subject to workplace safety rules set out by the Occupational Safety and Health Administration (OSHA), which will be enforcing the mandate among businesses.

But because details about new standards haven’t been released yet, it’s uncertain that the mandates would apply to this group as well, said Minnesota Department of Labor and Industry Deputy Commissioner Nicole Blissenbach.

“We’re playing much of the waiting game as well,” she said. “We’re just waiting for that language and the direction.”

When will the mandate go into effect?

Biden gave a blueprint for these mandates on Thursday, but the details of the rules are still being hammered out.

Once those rules are finalized, Minnesota OSHA, which will enforce the mandate for businesses with 100 or more employees, has 30 days to adopt a standard that is as effective as the one set out by the federal government, said Blissenbach.

Federal workers, meanwhile, have 75 days to get shots.

How will the mandate be enforced?

Blissenbach said without having details of the new rules yet, it’s hard to say exactly how OSHA would enforce the mandates.

But in theory, it could look a lot like how OSHA enforces other workplace health requirements.

Right now, the agency responds to and investigates complaints when employers aren’t following a workplace standard already on the books.

“And then, if we see violations, we can issue citations and penalties,” Blissenbach said. OSHA also does routine inspections of businesses, she added. According to the Associated Press, violations would come with a $14,000 fine.

Meanwhile, the Centers for Medicare and Medicaid Services will effectively extend a vaccine mandate issued earlier this year for people working in nursing homes to other health care workers working in an array of settings.

The Department of Health and Human Services is also involved.

What happens if I refuse to get a shot?

The new rules require employers to provide paid time off to get vaccinated.

But if employees choose not to be vaccinated, they will be subject to weekly testing, though it’s not clear right now how that testing will be paid for.

Meanwhile, federal employees and contractors can’t opt out of getting the vaccine.

Can I claim a religious or health exemption?

Ellingstad said that if someone can prove they’re medically unable to get vaccinated, the employer would have to figure out if they can accommodate that employee — for instance, if that employee can work from home.

But if the employee’s job can’t be done remotely, “At the end of the day, they would have the ability to terminate as long as they’ve provided the accommodation interactive process,” she said.

Religious accommodations are harder for employees to prove because they need to show their employers that their beliefs are sincerely held, Ellingstad said.

Will these mandates be challenged in court?

Almost certainly.

But legal experts think Biden is on solid ground.

“There’s a long history of the law taking very serious steps to control contagious diseases and the courts upholding those steps,” said Jill Hasday, who is a Distinguished McKnight University Professor and the Centennial Professor in Law at the University of Minnesota Law School. “Because one of the core functions of government is to maintain health and safety.”

This article originally appeared on the MPR News website.