Mandatory Employee Vaccines – Coming to A State Near You? (UPDATED) – JD Supra

Littler
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.
Employers interested in further information might also wish to review our posts summarizing statewide guidance on reopening and mitigation protocols, face coverings, and employee health screenings.
Jurisdiction
Vaccine Requirements for Employees
Last Updated
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, on August 25, 2021, and following the FDA’s approval of the Pfizer vaccine,  the Department of Defense announced the release of a memo that “directs the secretaries of the military departments to immediately begin full vaccination of all members of the department on active duty or in the Guard or Reserve, who aren’t yet fully vaccinated against COVID-19.”
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.
On August 18, the White House issued a Fact Sheet announcing that U.S. Department of Health and Human Services will develop new regulations requiring nursing homes to require that all of their workers be fully vaccinated against COVID-19 in order to continue receiving Medicare and Medicaid funding. 
8/25/21
Alabama
No requirement
Alaska
No requirement
Arizona
No requirement
Arkansas
No requirement
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.
8/11/21
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.”
The Colorado Department of Corrections, Department of Public Health and Environment, and Department of Human Services announced that agency staff members and other state employees who interact with vulnerable populations and populations living in congregate living settings will be required to be vaccinated.  The staff members included in the mandate for CDOC and CDPHE will have until September 30 to receive the first dose of the vaccine and are required to be fully vaccinated by October 31. CDHS staff will be on a staggered rollout by facility with fully vaccinated dates between October 31 and November 14. 
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.
8/19/21
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.
Per Executive Order No. 13D, all state employees, as well as staff of all childcare facilities and preK-12 schools statewide, must receive at least one dose of a COVID-19 vaccine by 9/27. Those who do not get vaccinated due to certain exemptions will be required to be tested for COVID-19 on a weekly basis. State hospital and long-term care employees will not have the option of being tested in lieu of vaccination.
NOTE: At least one Connecticut locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
8/21/21
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. Moreover, all healthcare workers in the District must receive at least the first dose of a vaccine by September 30 (except those individuals that may be exempt due to religious beliefs or medical conditions). 
8/17/21
Florida
No requirement
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.
Georgia
No requirement
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.
8/6/21
Idaho
No requirement
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.
The governor further announced that, as of September 5, the state will require additional individuals to be vaccinated or submit to testing at least once a week, including preschool through 12 teachers and staff; higher education personnel; and higher education students. In addition, “[t]o lower the number of breakthrough cases that require hospital admission, the majority of whom are 65 and over or immunocompromised, all healthcare workers, including workers at public and private nursing homes, must get vaccinated.”  
On August 26, the governor issued Executive Order 2021-20 to formalize the requirements for these groups.
NOTE: At least one Illinois locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
8/26/21
Indiana
No requirement
Iowa
No requirement
Kansas
No requirement
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
Louisiana
No requirement
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, the Department of Health issued an Amended Directive and Order Regarding Vaccination Matters, which requires all employees of the state’s nursing homes and all employees of Maryland hospitals to show proof of vaccination, or adhere to ongoing COVID-19 screening and testing. The first dose must be received by September 1. The Directive and Order is effective until December 21 at 11:59 p.m. or when the federal Determination that a Public Health Emergency Exists Nationwide as the Result of the 2019 Novel Coronavirus is terminated, whichever condition comes first.
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.
8/19/21
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.” The State Department of Public Health issued updated Guidance Memorandum regarding COVID-19 personnel vaccination requirement to nursing home administrators. 
Per the governor’s announcement and an Executive Order 595, all Executive Department employees must provide proof they have been fully vaccinated on or before October 17 or be subject to disciplinary action, up to and including termination. The policy applies to both employees working in-person and those who are teleworking.
NOTE: At least one Massachusetts locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
8/21/21
Michigan
No requirement
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.” 
NOTE: At least one Minnesota locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
8/11/21
Mississippi
No requirement
Missouri
No requirement
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.
Montana
No requirement
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.
Nebraska
No requirement
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.”
The governor announced on August 23 that he signed Executive Order No. 253 "requiring all preschool to Grade 12 school personnel to be fully vaccinated against COVID-19 by October 18, 2021 or be subject to COVID-19 testing at minimum one to two times per week." The order covers "[c]ontractors, providers, and any other individuals performing work in preschool to Grade 12 settings whose job duties require them to make regular visits to such covered settings, including volunteers." Building on Order No. 252, the governor further announced that “[a]ll state employees – including those at state agencies, authorities, and public colleges and universities – are required to complete a full vaccination course or undergo regular testing at a minimum of once to twice each week,” with full compliance required by October 18. 
8/23/21
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.”
The Department of Health issued a Public Health Emergency Order, which requires for all workers in certain medical close-contact congregate settings – including hospitals, nursing homes, juvenile justice facilities, rehabilitation facilities, state correctional facilities and more – to be vaccinated against COVID-19 (with limited exceptions). Unvaccinated individuals who do not qualify for an exemption must receive their first dose of a COVID-19 vaccine within 10 days of August 17, and their second dose, as needed, within 40 days of receiving the first shot. Those individuals must provide documentation to their supervisor or the operator of the facility in which they contract or work. Anyone granted an exemption by the operator of a hospital or congregate care facility must provide documentation of COVID-19 testing on a weekly basis. The Emergency Order also requires that, effective August 23, all workers at private, public, and charter schools in the state who are not fully vaccinated against COVID-19 or who are unwilling to provide proof of vaccination to their respective supervisors must provide proof of a COVID-19 test on a weekly basis.
8/19/21
New York
Per Governor Cuomo’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.” 
In addition, the governor announced that all healthcare workers in the state, including staff at hospitals and long-term care facilities (e.g., nursing homes, adult care, and other congregate care settings), will be required to be vaccinated against COVID-19 by Monday, September 27. To implement the move, the State Department of Health issued a Section 16 Order (Order for Summary Action) on August 18, with further details about the requirement and its limited exceptions for those with religious or medical reasons.  
Per Governor Hochul’s August 24 announcement, she will “pursue options to mandate vaccines for school employees or require weekly testing in the absence of vaccines, and will continue to work with the Department of Health, education stakeholders and the Legislature on establishing the mandate.”
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.
8/24/21
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.
7/29/21
North Dakota
No requirement
Ohio
No requirement
Oklahoma
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.”  Per a subsequent announcement by the governor, Oregon’s vaccination requirement for health care workers will no longer have a testing alternative. Health care workers will be required to be fully vaccinated by October 18 or 6 weeks after full FDA approval, whichever is later. 
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.
Health officials announced that the Secretary of State published mandatory vaccination rules for healthcare providers and staff, and for K-12 school employees (including staff and volunteers) on August 25.
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.
8/25/21
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.
8/10/21
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 and Executive Order 2021-063, compulsory vaccination also will apply to employees working in (among other things) restaurants, fast food restaurants, food courts, bars, stadiums, 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.
The governor further extended vaccination requirements on August 19, per Executive Order 2021-064. The order requires gyms, beauty salons, barber shops, spas, childcare centers, casinos, and markets to ensure their employees and contractors are vaccinated, with one dose completed by August 30 and the second dose completed by October 15. Exempted employees must undergo weekly testing or provide a medical certification that they have already recovered from a prior infection. As of August 30, these businesses must also require customers to show proof of vaccination, a negative test result, proof of recovery from a prior infection – or they must reduce their operating capacity to 50%. 
8/19/21
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. On August 17, the Department of Health announced that it adopted an emergency rule requiring all health care workers and health care providers to be vaccinated by October 1. The rule also sets forth safety measures to be utilized by unvaccinated personnel in the interim: “[p]rior to October 1st, any worker in a RIDOH-licensed healthcare facility who is not vaccinated is required to wear a face mask and be tested at least twice weekly.” The rule is scheduled to expire on December 14, 2021.
8/17/21
South Carolina
No requirement
South Dakota
No requirement
Tennessee
No requirement
Texas
No requirement
Utah
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.
8/5/21
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.” Proclamation 21-14.1 expands the prior order to include all employees, on-site contractors and on-site volunteers at all public and private K-12 schools, public and private 2- and 4-year institutions of higher education, and early learning and child care programs serving children from multiple households.  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.”
The governor also announced that a COVID vaccine will be required for employees working in K-12, most childcare and early learning, and higher education, K -12 educators, school staff, coaches, bus drivers, school volunteers and others working in school facilities.  They will  have until October 18 to be fully vaccinated as a condition of employment; there will be no test-out option. The requirement includes public, private and charter schools. Unions may bargain with school districts to negotiate time off to receive the vaccine or recover from symptoms of the vaccine. There are limited exceptions under law that employees may apply for (e.g., legitimate medical reasons and sincerely held religious beliefs). Individuals who refuse to get vaccinated will be subject to dismissal. See also: COVID-19 Vaccination Requirement for K-12 School Employees: FAQs
NOTE: Some Washington localities may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
8/21/21
West Virginia
No requirement
Wisconsin
No requirement
NOTE: At least one Wisconsin locality may have provisions concerning mandatory employee vaccination. Please check with your Littler attorney for additional information about your particular jurisdiction.
Wyoming
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.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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