Biden administration withdrawing COVID-19 vaccine mandate. Can your employer still require it?

Companies with 100 or more employees will no longer be required to have employees get vaccinated -- but they can still mandate it on their own terms. Here's what to know.

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A federal mandate requiring large companies to vaccinate employees is now being withdrawn.

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The Biden administration is withdrawing its COVID-19 vaccine mandate for companies with 100 or more employees, the Department of Labor said Tuesday (PDF). This follows the Supreme Court's decision earlier this month to block the requirement. It would've required employees to get fully vaccinated or provide negative COVID-19 test results weekly.

The federal vaccine requirement was designed to curb the surge in coronavirus cases, hospitalizations and deaths seen in recent months, including those caused by the delta variant and the omicron variant spreading across the country. 

Unvaccinated people are 10 times more likely to be hospitalized and 11 times more likely to die from the coronavirus, according to the Centers for Disease Control and Prevention. Breakthrough COVID-19 cases, which occur when vaccinated people contract the disease, are far less deadly but can still produce long-term effects, including "long COVID."

Now that OSHA has withdrawn the requirement, you may be wondering if employers can still mandate the vaccine -- we'll explain below. Also, here's the latest on getting booster shots for Moderna, Pfizer and Johnson & Johnson. Plus: How to get free COVID-19 test kits and free N95 masks.

Watch this: What to do if you lose your vaccination card, and how to never lose it again

What's happening with the vaccine mandate?

Large companies (100 or more employees): The Biden administration has decided to withdraw the mandate for large businesses following the Supreme Court's decision on Jan. 13 to block the mandate. It's now up to individual businesses to make the decision to require employees to get fully vaccinated (more below).

Federal workers: federal judge in Texas blocked President Joe Biden's vaccine mandate for federal workers on Jan. 21. Judge Jeffrey Brown said it exceeds the president's authority and that it's "a bridge too far" for Biden to require federal employees to get vaccinated without the input of Congress.

Health care workers: The Supreme Court voted to keep the mandate in effect for health care workers. The health care mandate requires all employees at hospitals or other medical facilities that receive Medicare or Medicaid payments from the government to be fully vaccinated. 

The Centers for Medicare and Medicaid Service's "requirement for health care workers to be vaccinated will save the lives of patients, as well as the lives of doctors, nurses and others who work in health care settings," Jen Psaki said in a press briefing. It will cover 17 million health care workers.

The federal government allows private companies to require vaccinations

Even before Biden announced the COVID-19 vaccine mandate, federal law allowed US employers to require employees to be vaccinated during pandemics. The administration's new rule could give employers the option of making unvaccinated employees pay for the weekly testing, Bloomberg Law reported. At the same time, because the order is federally mandated, the Department of Labor can require employers to give workers paid time off to get vaccinated and paid sick leave to recover from any side effects.

The Americans with Disabilities Act excuses some people from mandatory vaccination

The Americans with Disabilities Act requires employers to provide "reasonable accommodations" to workers with medical conditions that would make them unable to get a vaccine. The US Equal Employment Opportunity Commission recognizes long COVID as a disability under the ADA

According to the US Department of Health and Human Services, these civil rights protections can't be waived -- even during emergencies.

Does the Civil Rights Act apply to people who oppose vaccines on religious grounds?

At this time, decisions to block the vaccine mandate for workers because of religious beliefs have been on a case-by-case basis. For instance, on Jan. 3 a federal judge blocked a Navy vaccine mandate for those seeking exemption for religious reasons.

But even within religious groups, there are conflicting messages: Pope Francis is encouraging Catholics to get vaccinated, but the Rev. Timothy Broglio, archbishop for the US Armed Forces, said Catholic troops can refuse the COVID-19 vaccine if it violates their conscience.

In October, the Supreme Court refused to block Maine's vaccine mandate, which makes no provision for religious exemptions.

The following month, the US Court of Appeals for the Second Circuit upheld New York State's vaccine requirement, which also fails to provide for religious exemptions. The state's regulation had faced a suit by health care workers claiming it violated their First Amendment rights and the Civil Rights Act of 1964. 

vaccine syringes
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Who opposes the vaccine mandates?

In November, Senate Republicans led by Sen. Roger Marshall of Kansas sent a letter to Senate Majority Leader Chuck Schumer, a Democrat, saying they rejected all efforts to implement and enforce a COVID-19 vaccine mandate.
"We agree that countless Americans have benefitted from the protection offered by the COVID-19 vaccines," the letter read, in part. "Nevertheless, the decision whether to be vaccinated against COVID-19 is a highly personal one that should never be forced upon individuals by the federal government."

Some unions -- especially those representing police officers, firefighters and emergency workers -- have pushed back against vaccine requirements, as well. 

Even some Google employees have opposed large-scale vaccine mandates: A manifesto viewed by CNBC and signed by more than 600 workers from the Mountain View, California-based tech giant called on employees to "oppose the mandate as a matter of principle."

Few mainstream American religions oppose vaccination, though. The chief exceptions are the Church of Christ, Scientist and the Dutch Reformed Church

What happens if you object to a vaccine required by your employer?

Just because you have a valid medical disability or theological objection to receiving a coronavirus vaccine doesn't mean your employer has to let you continue working under the same conditions you've been used to. Companies are required to make "reasonable accommodations," which could include allowing the employee to work remotely or take a leave of absence.

If you don't have an ADA-recognized medical condition and can't convince authorities of valid religious grounds for refusing the COVID-19 vaccine, your employer has the right to terminate your employment. And it's doubtful you'd be able to claim unemployment benefits because you were fired "for cause."

Some companies are also considering imposing fines on unvaccinated workers refusing to get the shot. This could include raising health care costs, withholding raises and restricting access to workplace amenities. For instance, the NBA says it won't pay unvaccinated players who miss games.

A 1905 Supreme Court case allows employers to require vaccines

There are precedents for large-scale vaccination requirements in US law. In 1901, a deadly smallpox outbreak in New England prompted local governments to order mandatory vaccinations for area residents. Some locals objected, however, and one took it all the way to the Supreme Court.
In Jacobson v. Massachusetts, the high court determined that the government could impose "reasonable regulations," such as a vaccine requirement during a pandemic, to protect the safety of the general public.

That case forms the basis of guidance issued by the Equal Employment Opportunity Commission, which made it clear that employers may make similar demands of their workers.

Watch this: COVID-19 boosters and the delta variant: What you need to know

How likely is your employer to require a COVID-19 vaccine?

Any company can require workers to get vaccinated, even if it's not a federal mandate. Here's more about who's required to get vaccinated against the coronavirus.

The information contained in this article is for educational and informational purposes only and is not intended as health or medical advice. Always consult a physician or other qualified health provider regarding any questions you may have about a medical condition or health objectives.