We must admit that the most important consideration for this topic is still in flux: the impact of various vaccine mandates that employers may need to enforce. When the idea for this article first came up, the concept of an employer vaccine mandate was relatively new. Some larger employers were experimenting with the idea, even without federal requirements to do so, or guidance on how to do so. Similarly, the idea of imposing a health insurance surcharge or other incentive was relatively new. Some employers who were contemplating such ideas carefully reviewed the legal concerts with counsel, including issues under Health Insurance Portability and Accountability Act (HIPAA) privacy and nondiscrimination rules, Americans with Disabilities Act (ADA) compliance issues, accommodations for religious beliefs and the looming specter of lawsuits from vaccine-hesitant employees.

Then, on Sept. 9, the White House issued “The Path out of the Pandemic,” an action plan which, among other things, indicated an intent to establish a federal employer vaccine mandate. However, regulations implementing this plan have not yet been issued. Further complicating the matter, certain states (notably Texas) have recently taken steps to prevent vaccine mandates. It is very likely that future federal guidance will take a similar form to executive actions taken early in the pandemic, suspending the application of certain rules that create impediments to protective measures. Until additional guidance is issued, it is difficult to determine the scope and breadth of the relaxation of these rules will take. It is entirely possible that the restrictions described below will be temporarily eased, but certain structures are currently permissible under existing guidance.

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