More News from Littler Mendelson on EACC’s sister chapters in Florida and Texas:
- Florida Ban on Requiring Vaccine Passports Banned (For Now)
- Florida employers can require employees to obtain COVID-19 vaccinations, submit records of such vaccination, and implement other safety measures for their workplaces notwithstanding national publicity suggesting that recent Florida rules, orders, and laws prohibit or discourage these public health measures. As the pandemic worsens it is important for employers to understand both the specific terms and the limits of Florida’s enactments. Learn More
- Texas: Mask On, Mask Off, Mask On…
- In an apparent rebuttal to Governor Abbott’s July 29, 2021, Executive Order (GA-38) prohibiting mask mandates, Dallas County Judge Clay Jenkins issued his own Order on August 11, 2021 requiring all public schools, child care centers, commercial entities that provide goods or services directly to consumers and Dallas County buildings to require masks regardless of vaccination status. Learn More
While available vaccines have proven highly effective in controlling COVID-19 and its variants to date, the virus continues to spread — particularly among unvaccinated populations. In the face of flagging interest, officials across the U.S. have tried different approaches to increase vaccination rates. For example, officials launched incentive programs, stressed personal responsibility, deployed mobile vaccination units, and coordinated with corporate and community partners to encourage and effectuate vaccine uptake.
But having exhausted these avenues, and with the rise of more contagious COVID-19 variants, some officials are going a step further. In recent weeks, several states and municipalities have announced that, in essence, they are requiring certain categories of workers to be vaccinated. Generally, under these types of mandates, workers who decline vaccination must comply with measures that do not apply to their vaccinated counterparts, such as weekly COVID-19 testing and/or mask wearing. Depending on the jurisdiction and the sector involved, however, unvaccinated workers might not have such alternatives.
The chart below provides basic information on vaccination mandates issued at the statewide level. It covers directives that affect public or private entities as employers. This post does not address local guidance, orders that relate to customer or patron vaccination status (e.g., “vaccine passports”), narrower mandates specific only to schools or educational institutions, or recommendations that do not impose obligations. We will update this list regularly but expect that new announcements will be made frequently in the coming weeks.
In addition, this post does not address other significant issues related to employee vaccinations, including potential leaves of absence, discrimination, accommodation, incentives, and privacy concerns. As a result, employers should consult with counsel for guidance on these legal questions.
Vaccine Requirements for Employees
|Federal||Per President Biden’s announcement, and this fact sheet, federal government employees will be asked to attest to their vaccination status. Anyone who does not attest or is not vaccinated will be required to mask at all times, test one to two times per week, socially distance, and generally will not be allowed to travel for work. Relatedly, the Department of Defense announced that it will seek presidential approval to require all of its employees – including uniformed personnel, along with civilian and contractor staff – to be vaccinated by mid-September, or when the vaccine receives U.S. Food and Drug Administration licensure, whichever comes first. The U.S. Department of Health and Human Services announced that it will require more than 25,000 members of its healthcare workforce to be vaccinated against COVID-19. Members include NIH’s and Indian Health Service’s staff, contractors, trainees, and volunteers who serve in federally operated health care and research facilities or may come in contact with patients. The U.S. Surgeon General will require members of the U.S. Public Health Service Commissioned Corps to be vaccinated as well.||8/14/21|
|California||Per the governor’s announcement, and this public health order, all state workers – plus workers in health care and high-risk congregate settings – must “either show proof of full vaccination or be tested at least once per week. . . . The new policy for state workers will take effect August 2 and testing will be phased in over the next few weeks. The new policy for health care workers and congregate facilities will take effect on August 9, and health care facilities will have until August 23 to come into full compliance.” The state released related Q&A guidance.
Moreover, per an August 5 announcement, officials expanded the vaccination requirement to cover more types of health care facilities and issued two new public health orders. “The first order requires workers in health care settings to be fully vaccinated or receive their second dose by September 30, 2021.” If a health care worker remains unvaccinated for religious or qualifying medical reasons, testing is required. The second order applies to visitors at hospitals, skilled nursing facilities, and intermediate care facilities.
Per an August 11 announcement, the Department of Public Health released a public health order “requiring all school staff to either show proof of full vaccination or be tested at least once per week. . . . The new policy for school staff will take effect August 12, 2021, and schools must be in full compliance by October 15, 2021.” The order applies to public and private K-12 schools but does not apply to higher education or child care facilities.
NOTE: Several California localities may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Colorado||Per the governor’s announcement, and as summarized in these FAQs, “unvaccinated state workers must begin serial testing and continue mask-wearing indoors in public spaces. . . . The plan is effective Sept. 20, 2021.”
NOTE: At least one Colorado locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Connecticut||Per the governor’s announcement, state law as amended by Executive Order No. 13A, the Department of Public Health “plans to require that all unvaccinated nursing home staff statewide receive weekly testing for COVID-19.”
Moreover, as explained by the governor and pursuant to Executive Order 13B, by September 7, all employees working at long-term care facilities: (i) must be fully vaccinated against COVID-19; (ii) must have received a first dose and have either received a second dose or have an appointment for the second dose; or (iii) must have been exempted from vaccination.
|Delaware||Per the governor’s announcement, beginning September 30, staff in long-term care and other healthcare facilities will be required to provide proof of vaccination or undergo regular testing. The requirements will be formalized by the end of the month and will be available here. State employees will be required to provide proof of vaccination or undergo regular testing for COVID-19. Additional information will be provided to state employees by the Delaware Department of Human Resources.||8/14/21|
|District of Columbia||Per the mayor’s announcement and Order 2021-099, “all employees, contractors, interns and grantees of the Government of the District of Columbia must be fully vaccinated against COVID-19” by September 19. The order also applies to new hires for vacancies posted on or after August 14. Employees who remain unvaccinated (even if exempted) will be required to undergo weekly testing.||8/10/21|
NOTE: At least one Florida locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Hawaii||Per the governor’s announcement, and this emergency proclamation, beginning August 16, “all State and county employees must provide their vaccination status to their department, office or agency. If they cannot provide proof of vaccination, they will be subject to regular COVID-19 testing.”
NOTE: At least one Hawaii locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Illinois||Per the governor’s announcement, vaccinations will be required for state employees working in state-operated congregate settings, including state prisons and veterans homes, as of October 4.||8/4/21|
|Kentucky||Per the governor’s announcement, “the cabinet will strongly encourage all contractors and state employees working in these state-operated facilities be fully vaccinated against COVID-19 by Oct. 1, unless there is a religious or medical reason they cannot be vaccinated. If any of the staff in these facilities is unvaccinated, they will be tested at least twice weekly for their safety and the safety of the Kentuckians they serve.”||8/2/21|
NOTE: At least one Louisiana locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Maine||Per the governor’s announcement, an Emergency Rule will require certain healthcare workers to be fully vaccinated for COVID by October 1. “Health care workers” Includes individuals employed by a hospital, multi-level health care facility, home health agency, nursing facility, residential care facility, and intermediate care facility for individuals with intellectual disabilities that is licensed by the State of Maine. The emergency rule also requires those employed by emergency medical service organizations or dental practices to be vaccinated for COVID.||8/14/21|
|Maryland||Per the governor’s announcement, and this public health order, as of September 1, state “employees in 48 state facilities will be required to show proof of vaccination, or adhere to strict face covering requirements and submit to regular, ongoing COVID-19 testing.”
NOTE: At least one Maryland locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Massachusetts||Per the governor’s announcement, and this public health order, Massachusetts plans to implement a vaccine mandate for staff at certain non-state operated skilled nursing facilities as well as for staff at two Soldiers’ Homes. Covered “[p]ersonnel includes all individuals employed directly or by contract by the LTC provider. All unvaccinated personnel are to receive a first dose of a two-dose series by September 1, 2021; and be fully vaccinated by October 10, 2021.”||8/4/21|
|Minnesota||Per the governor’s announcement, “state agency employees will be required to show proof of vaccination or participate in regular testing before returning to the workplace,” by September 8. “Employees who are not vaccinated will be required to receive a negative COVID-19 test at least once a week in order to work on-site at all public workplaces around the state.”||8/11/21|
NOTE: At least one Missouri locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
NOTE: Under a Montana law enacted in 2021, as discussed in these FAQs, employers in the state generally may not mandate any vaccine allowed under an emergency use authorization or any vaccine undergoing safety trials. Moreover, the law prohibits employers from refusing or barring an individual from employment or from making compensation decisions based on the individual’s vaccination status.
|Nevada||Per the governor’s announcement, as of August 15, 2021, state government “employees who are not fully vaccinated will be required to take weekly COVID-19 tests and proof of testing and results must be submitted to their human resources officer or department supervisor.” The testing protocol will be retired for any state government workplace that reaches a 70% vaccination rate.||7/30/21|
|New Hampshire||No requirement|
|New Jersey||Per the governor’s announcement, and Executive Order No. 252, “all workers in certain state and private health care facilities and high-risk congregate settings will be required to be fully vaccinated against COVID-19 or be subject to COVID-19 testing at minimum one to two times per week. . . . Health care facilities and other settings covered by the requirement will have until September 7, 2021 for all employees to come into full compliance with the vaccine mandate.”||8/6/21|
|New Mexico||Per the governor’s announcement, as well as Executive Order 2021-045 and Executive Order 2021-046, “all state employees [must] either be fully vaccinated or otherwise submit to regular COVID-19 testing. Under the order, state employees who are not fully vaccinated against COVID-19 shall be required to demonstrate a negative COVID-19 test at least once every two weeks. State employees who are not fully vaccinated, under the order, must wear a facemask when indoors during the course and scope of their employment — with minor exceptions for eating and drinking.”||7/29/21|
|New York||Per the governor’s announcement, “patient-facing healthcare workers at state-run hospitals will be required to get vaccinated for COVID-19 by Labor Day. There will not be an option to be tested in lieu of vaccination for these patient-facing healthcare workers.” Further, “all New York State employees . . . will be required to get vaccinated for COVID-19 by Labor Day. State employees who do not get vaccinated will be required to be tested for COVID-19 on a weekly basis.” The governor also announced that “MTA and Port Authority employees working in New York facilities will be required to be vaccinated . . . or be tested weekly.”
NOTE: At least one New York locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|North Carolina||Per the governor’s announcement and Executive Order 224, summarized in these FAQs, state government employees (cabinet agency) who are not vaccinated will be required to wear masks and undergo weekly testing as of September 1.
NOTE: At least one North Carolina locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|North Dakota||No requirement|
|Oregon||Per the governor’s announcement, the Oregon Health Authority will issue a rule that will require “weekly COVID-19 testing for personnel in health care settings to prevent the spread of COVID-19 in health care settings, which can be waived with a proof of vaccination.” The requirement “to be vaccinated or undergo weekly testing will apply starting September 30th.”
In addition, per the governor’s August 10 announcement, “all State of Oregon executive branch employees will be required to be fully vaccinated on or before October 18, or six weeks after a COVID-19 vaccine receives full approval from the U.S. Food and Drug Administration, whichever is later. . . . Individuals unable to be vaccinated due to disability or sincerely held religious belief may be able to qualify for an exception, as required by state and federal law. State of Oregon employees will not have the option of weekly testing instead of showing proof of vaccination.” On August 13, the governor issued Executive Order No. 21-29.
NOTE: At least one Oregon locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Pennsylvania||Per the governor’s announcement, “commonwealth employees in state health care facilities and high-risk congregate care facilities will be required to be fully vaccinated against COVID-19 by September 7, 2021. Individuals who are not vaccinated will be required to undergo weekly COVID-19 testing. Additionally, beginning September 7, all new external hires in these facilities must be vaccinated before commencing employment.”
NOTE: At least one Pennsylvania locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Puerto Rico||Per the governor’s announcement, and Executive Order 2021-058 (available here), all public employees must receive their first dose of the vaccine by August 16 and complete vaccination by September 30. “All non-vaccinated employees (exempt or non-exempt) must bring a negative COVID-19 test result weekly or a positive result with medical certification that it is not contagious.”
According to news reports, and Executive Order 2021-062, the governor announced that the vaccination requirement also will extend to government contractors, the hospitality sector, and all health facility workers.
In addition, per the governor’s August 11 announcement, compulsory vaccination also will apply to employees working in (among other things) restaurants, fast food restaurants, food courts, bars, coliseums, cafeterias, theaters, cinemas, convention and activity centers, and places that sell prepared meals. Employees must receive the first dose by August 23, and the second (if needed) by October 7. Unvaccinated employees must present weekly negative or recovery test results.
|Rhode Island||According to news outlets, the governor announced that employees at “state-licensed health care centers” will be required to be fully vaccinated no later than October 1.||8/10/21|
|South Carolina||No requirement|
|South Dakota||No requirement|
NOTE: Utah Code 26-28-101 provides that a governmental entity may not require, directly or indirectly, that an individual receive an emergency COVID-19 vaccine unless the individual is both acting in a public health or medical setting and required to receive vaccinations in order to perform the employee’s assigned duties and responsibilities, or pursuant to a non-discretionary requirement under federal law.
|Virginia||Per the governor’s announcement, and Executive Directive No. 18, “Virginia will require its state workers to show proof that they are fully vaccinated or be tested for COVID-19 every week. This policy . . . will go into effect on September 1.”
NOTE: At least one Virginia locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|Vermont||As reported in news outlets, further discussed here, the governor announced that state employees who work with vulnerable populations – such as staff at correctional facilities, the veterans’ home, and a psychiatric hospital – must either be fully vaccinated or face regular testing or some other sort of “exit ramp.” Additional details are forthcoming.||8/10/21|
|Washington||Per the governor’s announcement, and Proclamation 21-14, the state adopted “a requirement for most state workers, and on-site contractors and volunteers to be vaccinated against COVID-19 as a condition of employment. State employees and workers in private health care and long-term care settings will have until October 18 to be fully vaccinated.” Discussed in more detail here, the order applies “to executive cabinet agencies, but the governor encouraged all others such as higher education, local governments, the legislative branch, other statewide elected officials and organizations in the private sector to do the same.” Notably, “there will be no test-out option for employees. . . . Employees who refuse to be vaccinated will be subject to dismissal from employment for failing to meet legal job qualifications.” The governor released these FAQs, which add that the vaccination proclamation applies to “employees in private sector health care and in long term care settings including but not limited to nursing homes, adult family homes, assisted living, enhanced services facilities, RTFs, and other treatment facilities.”
NOTE: Some Washington localities may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
|West Virginia||No requirement|
Because the COVID-19 situation is dynamic, employers should consult with counsel for the latest developments and updated general and industry-specific guidance.
Compliments of Littler Mendelson – a member of the EACCNY.