On September 9, 2021, President Joseph R. Biden announced Path Out of the Pandemic, a new COVID-19 Action Plan, mandating vaccines for employees of large private employers, federal contractors and most healthcare employers. The plan is a six-pronged strategy that President Biden stated in a White House speech is because his “patience is wearing thin” with Americans not getting vaccinated.
Employers with 100 or More Employees
President Biden has tasked the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop a rule through an Emergency Temporary Standard (“ETS”) that will require employers with 100 or more employees to mandate that their workforce is fully vaccinated or require their employees to produce a weekly negative test result for COVID-19 before coming to work.
As a part of the ETS, OSHA is developing a rule that will require the same employers to provide paid time off to employees to get the vaccine and to recover post-vaccination. With employers in many industries already struggling to maintain a stable workforce, the ETS will no doubt make that even harder at least in the short term. As a result, some companies have already announced that they will not comply with the mandate.
Federal Employees and Contractors
President Biden signed an Executive Order requiring all federal executive branch employees to be vaccinated. It also requires mandatory vaccination for employees of some federal contractors. For federal employees, they must be vaccinated unless they have a religious or disability exemption. Unlike employees of covered private employers, federal employees do not have an option to choose to not be vaccinated and to instead test on a regular basis. Federal employees who do not qualify for an exemption will have a 75-day period to become fully vaccinated or apparently lose their job.
The Safer Federal Workforce Task Force (the “Task Force”) will determine what is required of federal contractors and issue guidance by September 24. Based on prior executive orders regarding federal contractors, it is expected to apply to any workplace location in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.
Healthcare workers in facilities that receive Medicare or Medicaid will similarly be required to take the COVID-19 vaccination. The Centers for Medicare and Medicaid Services (“CMS”) is overseeing this requirement, which will apply to hospitals, home health agencies, and nursing homes, to name a few.
What Do Covered Employers Need to Do
President Biden’s announcement of Path Out of the Pandemic does not require immediate compliance with regard to private employers as it was not an Executive Order. Although no timeline has been announced, OSHA is expected to issue the ETS regarding private businesses in next to no time. While we expect many businesses to immediately challenge the constitutionality of the ETS, employers will be required to comply with it in the short term or face fines.
Accordingly, covered private employers should get ahead of the ETS by:
- Immediately surveying whether employees will comply with the vaccine mandate, elect to be tested weekly, or resign and seek other employment.
- Determining whether employees will be given the option of testing when they do not meet the disability or religious exemption. Allowing employees the option to test rather than be vaccinated may result in employers having to compensate employees for their time spent testing each week in certain jurisdictions.
- Drafting a policy setting forth the mandatory vaccine guidelines or the requirement to be tested weekly, which should include:
- The procedure for requesting time off to be vaccinated;
- The procedure regarding notifying a manager if the employee is having post-vaccinated side effects and cannot work; and
- Set forth the steps that employees should follow if they chose to not be vaccinated or need a medical accommodation or have a religious objection.
- Determining whether to offer incentives to employees to get the vaccine.
- Creating forms for employees to submit if they chose to not be vaccinated (if the company allows this as an option) or need a medical accommodation or have a religious objection to the vaccine.
- Deciding whether to treat employees the same who refuse to be vaccinated as compared to those who need a medical accommodation or have a religious objection.
- Determining a process for weekly testing for those who do not have the vaccine, including the documentation that is required, whether at-home tests will be permitted (which appears likely given that the Action Plan calls for a federal investment of $2 billion to procure 280 million rapid and at-home tests) and who will be collecting the data administratively.
- Immediately determining how to address the situation if a substantial number of employees refuse to be vaccinated and refuse to be tested weekly from an administrative process.
Constitutionality of the ETS
For those businesses seeking advice or with questions about the ETS, please reach out to your Taylor English attorney or a member of Taylor English Decisions, the government relations and business consulting affiliate of Taylor English.