December 5, 2021

Volume XI, Number 339

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December 03, 2021

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December 02, 2021

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Coming Soon: Employers Required To Ensure Employees Are Vaccinated Or Regularly Tested – President Biden’s Sweeping COVID-19 Action Plan: What Employers Need to Know (US)

It has been nine months since the first person in the United States received the COVID-19 vaccine, and ever since then, employers have been weighing the pros and cons of whether to require that employees be vaccinated as a condition of employment. On September 9, 2021, President Biden narrowed the options for many employers when he announced a six-pronged, comprehensive COVID-19 Action Plan (“Plan”), which in part, requires that larger employers ensure that their workforce is vaccinated, or in the alternative, that they submit to weekly COVID-19 testing. The stated goal of the Plan is to ensure that the US is using every available tool to combat COVID-19 and to save lives in the months ahead, while also keeping businesses and schools open and safe, and protecting the economy from further lockdowns and damage.

The six prongs of the Plan are:

  1. Vaccinating the Unvaccinated

  2. Further Protecting the Vaccinated

  3. Keeping Schools Safely Open

  4. Increasing Testing & Requiring Masking

  5. Protecting Our Economic Recovery

  6. Improving Care for those with COVID-19.

This blog will focus on the parts of the Plan that are most relevant to private employers and small businesses. More information concerning the other aspects of the Plan are available here.

Vaccinating the Unvaccinated

The President’s Plan seeks to reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements. One major way President Biden plans to accomplish this goal is by requiring that certain employers mandate the vaccine (or regular COVID-19 testing) for their employees. In addition, the Plan will provide paid time off for vaccination for most workers in the country. Specifically, the following mandates will have a direct and imminent impact on employers:

  • All Employers with 100+ Employees Must Ensure Their Workers are Vaccinated or Tested Weekly: The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is developing a rule that will require all US employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (“ETS”) to implement this requirement. The ETS is expected to be published in the coming weeks and will take effect shortly thereafter. 

  • Employers Must Provide Paid Time Off to Employees To Receive The Vaccine: OSHA additionally also developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are feeling ill after receiving the vaccine. This requirement will also be implemented through the ETS. 

  • All Federal Workers and Federal Contractors that Do Business with the Federal Government Must Be Vaccinated: President Biden signed Executive Orders requiring all federal executive branch workers to be vaccinated, and directing that this standard be extended to employees of contractors that do business with the federal government. President Biden’s orders for executive branch workers and federal contractors include exceptions for workers seeking religious or medical exemptions from vaccination. 

  • Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settlings Must Be Vaccinated: The Centers for Medicare & Medicaid Services (“CMS”) is requiring COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. 

  • Large Entertainment Venues Should Require Proof of Vaccination or Testing for Entry: Under the Plan, entertainment venues such as sports arenas, large concert halls, and other venues where large groups of people gather, are encouraged to require that their patrons be vaccinated or show a negative test prior to entry.

 Protecting The Country’s Economic Recovery

One of the goals of President Biden’s Plan is to ensure that the country does not return to lockdowns and shutdowns. Additionally, the Plan offers new support to small businesses as they continue to battle the added hurdles caused by the Delta variant. These reforms include:

  • New Support for Small Businesses Impacted by COVID-19: The President’s Plan will strengthen the COVID Economic Injury Disaster Loan (“EIDL”) program, which provides long-term, low-cost loans. The improvements will allow more businesses to get greater and more flexible support from the $150 billion in loanable funds still available in the program.

    • First, the Small Business Administration (“SBA”) will increase the maximum amount of funding a small business can borrow through this program from $500,000 to $2 million, which can be used to hire and retain employees, purchase inventory and equipment, and pay off higher-interest debt. SBA will ensure that no small business will be required to start repaying these loans until two years after they receive the funding, so small businesses can get through the pandemic without having to also make payments.

    • In addition, SBA will make it easier for small businesses with multiple locations in badly affected sectors such as gyms, restaurants, and hotels, to access these loans.

    • Further, in order to make sure taxpayer dollars are used to support businesses that truly need assistance, SBA has tightened the controls and will collaborate closely with the SBA Inspector General to monitor the program.

    • Finally, to ensure that “Main Street” businesses have additional time to access remaining funds, SBA will offer a 30-day exclusive window of access during which only small businesses seeking loans of $500,000 or less will receive funding after the new improved loan product launches.

In addition to the foregoing, through his Plan, President Biden plans to increase COVID-19 testing by mobilizing industry to expand easy-to-use testing production, making at-home tests more affordable, sending free rapid at-home tests to food banks and other community organizations, and expanding free pharmacy COVID-19 testing. In addition, the Plan continues to require masking on federal property and continues to require masking for interstate travel, doubling the fines for noncompliance. The Plan also addresses booster shots and states that the Administration is preparing for boosters to start as early as the week of September 20, 2021. Finally, the Plan outlines steps for protecting children while keeping schools safely open, and ways to help improve care for those with COVID-19.

We anticipate that, in the weeks ahead, the federal government will announce additional COVID-19 rules and guidance, and as always, we will keep you updated as new information is released.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 252
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About this Author

Melissa Legault Labor & Employment Attorney Squire Patton Boggs Phoenix, AZ
Associate

Melissa Legault is an associate in the Phoenix office, where she focuses her practice on labor and employment matters. Melissa assists employers in diverse matters related to their employment relationships. She routinely researches and analyzes legal authorities for drafting memoranda, pleadings and position statements related to employment law. Melissa also conducts legal research on employment case law and current events to help clients achieve their goals while complying with frequently changing regulations.

Melissa graduated magna cum laude from the...

602-528-4044
Daniel B. Pasternak Labor & Employment Attorney Squire Patton Boggs Phoenix, AZ
Partner

Dan Pasternak works with employers to solve workplace problems. Sometimes that involves helping develop, implement and enforce effective and business-sensible employment and traditional labor relations policies and practices. Other times, it involves representing employers in high-stakes litigation matters.

For more than two decades, Dan has advised employers in managing one of their most important assets – their human resources. From leading workplace investigations and crafting executive and non-executive employment, retention and separation contracts, to designing and supporting...

602-528-4187
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