On September 9, 2021, President Biden announced that his Administration is implementing a six-pronged, comprehensive national strategy to ensure that all available tools are being used to combat COVID-19. The plan addresses: (1) vaccinating the unvaccinated; (2) further protecting the vaccinated; (3) keeping schools safely open; (4) increasing testing and requiring masking; (5) protecting the economic recovery; and (6) improving care for those with COVID-19. The first strategy is germane to employers.
Vaccinating the Unvaccinated
To accomplish this, the U.S. Government will require the following:
All private sector employers with 100 or more employees will be required to ensure their workers are vaccinated. Those who remain unvaccinated will need to produce a negative test result on at least a weekly basis before coming to work. The Administration has directed the Occupational Safety and Health Administration (OSHA) to develop and issue a new Emergency Temporary Standard (ETS) to implement this requirement.
The new ETS is expected to include a requirement that private employers with 100 or more employees provide paid time off for workers to receive the vaccine and recover from any side effects. While a timeline for issuance of the rule has not been announced, an ETS was already issued for workers in health care settings, effective June 21, 2021. That ETS does not contain a vaccination mandate, but does direct employers to provide reasonable paid leave for vaccinations and vaccine side effects.
All federal workers and contractors that do business with the federal government will need to be vaccinated. By Executive Orders issued September 9, 2021, President Biden directed that all federal executive branch workers be vaccinated (Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees); and that all employees of contractors that do business with the federal government be vaccinated (Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Order covering federal employees eliminated the testing option for those who are not vaccinated. Under the Order covering federal contractors, however, although the testing option appears to have been eliminated, further guidance is needed as to whether testing will be available for those employees of federal contractors who are not “performing [work] on or in connection with a Federal Government contract.” The Safer Federal Workforce Task Force is expected to issue guidance on September 24, 2021.
The latter Order takes effect immediately and applies to new contracts, new solicitations, extensions or renewals, and exercises of options on existing contracts where the relevant contract will be entered into, extended or renewed, or option exercised on or after October 15, 2021. The Order does not address penalties for the failure of federal government contractors to comply.
All staff at Medicare and Medicaid-certified hospitals and other health care facilities will be subject to a vaccine mandate. The U.S. Centers for Medicare and Medicaid Services (“CMS”) announced the nationwide mandate on September 9, 2021, applicable but not limited to, hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action is a continuation of efforts announced on August 18, 2021, when CMS advised that it was collaborating with the Centers for Disease Control and Prevention (“CDC”) to develop an emergency regulation requiring staff vaccinations at nursing homes participating in Medicare and Medicaid. It 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.
CMS is developing an Interim Final Rule with Comment Period that will be issued in October. Until that Final Rule takes effect, CMS expects certified Medicare and Medicaid facilities to act in the best interest of patients and staff by complying with new COVID-19 vaccination requirements.
Employers should operate on the assumption that, while controversial, the President’s orders may withstand any legal challenge, especially with respect to government contractors, given that there is no inherent right to do business with the government or gain from a federal contract. There is long-standing precedent of the United States Department of Labor (“DOL”) and the Office of Federal Contract Compliance Programs (“OFCCP”) successfully enforcing federal contract mandates that support an administration’s policy goals.
What Employers Should Do
With the issuance of President Biden’s COVID-19 Action Plan and Executive Orders, there remain many unanswered questions regarding the details. Until those questions are answered, employers should do the following:
Follow guidance and watch for updated guidance/rules issued by the Center for Disease Control (CDC), OSHA, the Task Force, and, if applicable, CMS and other regulatory agencies.
Consider using all available resources to support employee vaccinations, including employee education and clinics.
If implementing a vaccination mandate, recall that, as we have previously explained, such programs must be compliant with applicable laws protecting workers’ medical information privacy, limiting disability-related inquiries, and prohibiting discrimination based on disability or other protected categories, including sincerely held religious beliefs and genetic information. Employers should refer to the U.S. Equal Employment Opportunity Commission’s guidance and seek our support.