September 27, 2021

Volume XI, Number 270


September 24, 2021

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Biden’s COVID-19 Path Forward is Paved With Employer Obligations

President Biden announced his Administration’s “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan” on Sept. 9, a new six-prong national strategy to combat the COVID-19 pandemic. As part of this strategy, the president focused largely on unvaccinated American workers and touted several new executive orders and forthcoming changes to current federal regulations, including:

  • Executive orders requiring that all federal employees and employees of federal contractors working on or in connection with a federal government contract be vaccinated;

  • A requirement that all workers in Medicare and Medicaid-certified facilities be vaccinated. A corresponding CMS press release also issued on Sept. 9, 2021 indicated that CMS is developing an Interim Final Rule with Comment Period to be issued in October, but urged facilities to “use all available resources” to support employee vaccinations immediately;

  • A requirement that all businesses with 100 or more employees ensure their employees are fully vaccinated or produce a negative test result weekly prior to returning to work. The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is developing an Emergency Temporary Standard to implement this requirement. President Biden’s announcement was silent as to whether employers are required to pay for the COVID-19 testing, but is clear that the penalties could include a $14,000.00 per occurrence fine for violations. Employers will be required to give paid time off for employees to get a COVID-19 vaccination, and for recovering from any side-effects from receiving the vaccine.

  • Encouragement to state leaders to require vaccinations for teachers and school staff, and a pathway for local school districts to apply to the Department of Education for additional COVID-19 related funding, if such funding has been withheld by a state.

How Does This Impact Employers?

The orders affecting federal contractors are currently in effect. Those employers should consider whether any existing vaccination policy should be modified or whether a new policy should be created. Carve-outs or exceptions for certain federal contractors are included in these orders, including contracts or agreements made under the Indian Self-Determination and Education Assistance Act, contracts or subcontracts with a value equal or less than the simplified acquisition threshold defined in 2.101 of the Federal Acquisition Regulation, employees performing work outside of the U.S, or employees working on subcontracts solely for the provision of products. Medicare and Medicaid-certified facility employers are not currently subject to an order but may want to consider reviewing their vaccination policies, if any, and whether it is appropriate prior to implementation of an order to deploy resources to supporting employee vaccinations.

Employers with 100 or more employees should closely monitor ongoing developments and any announcements on this issue from OSHA. Prior to the issuance of an executive order, these employers may consider reviewing existing vaccination, testing, and paid time off policies in order to prepare for any OSHA mandates.

Other policies that employers may consider reviewing and revising are those addressing employee accommodation requests. In the event that vaccination and testing mandates are implemented, employers may see a rise in employees seeking exemptions for medical reasons/accommodations from the requirements under the Americans with Disabilities Act (“ADA”) or the prohibition on religious discrimination under Title VII. Employers may want to begin analyzing what types of accommodations to recognize and how to implement the accommodation policy in a consistent manner. These considerations take on a heightened importance in light of the weekly fines contemplated by the forthcoming OSHA rules on mandatory vaccinations.

What Can I Do Now?

Employers may want to consider taking the following steps while we await further guidance from federal agencies:

  • Reviewing your vaccination policy in light of information currently known about the proposed new OSHA rules;

  • Review policies and processes in place for handling religious and ADA/medical accommodations requests;

  • Reviewing existing policies for providing paid leave time in light of potential new OSHA rules providing such leave for employees to get vaccinated or recover from any side effects of the vaccine; and

  • Consult your Nelson Mullins employment attorney to ensure your policies and procedures meet current legal requirements.

Copyright ©2021 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XI, Number 256

About this Author

Kristin Ahr Employment Litigation Attorney Nelson Mullins

Kristin has been practicing law in Florida for over 20 years and focuses her practice on employment litigation and compliance and commercial litigation. She serves as counsel to a broad range of clients, public and private, in both federal and state courts, as well as before administrative agencies, and alternative dispute resolution forums.

Kristin represents local, national, and international businesses, management, and individuals in employment-related matters including discrimination and harassment and claims involving age, disability, race...

Phillip J. Strach Attorney Labor Employment Law Nelson Mullins Raleigh

Phil regularly represents management in labor/employment law and related matters. He advises clients on covenants not to compete and litigates claims involving restrictive covenants, trade secrets, and other business-related litigation. Phil also regularly defends management and employers in employment discrimination cases and counsels management on how to prevent or reduce the risk of these lawsuits.

Alyssa Riggins Attorney Labor Law Nelson Mullins Law Firm Raleigh

Alyssa focuses her practice on employment and labor matters, with experience in litigation. She has routinely counseled companies, including one in the Fortune 500, on RIF, OWBPA, and WARN Act matters. At the height of the COVID-19 pandemic, she counseled clients on furloughs, layoffs, return-to-work, and vaccination issues, and she otherwise works with clients on employment issues as they arise. She has experience in litigation from the early stages to close, including a federal First Amendment trial, a trial involving novel claims under the North Carolina Constitution...