President Biden Announces Vaccine Mandates for Employees of Large Private Employers and Many More
September 10, 2021
President Biden Announces Vaccine Mandates – President Biden announced his new Path Out of the Pandemic: COVID-19 Action Plan. This six-part plan mandates employers with more than 100 employees, federal government employees, federal contractors, and many healthcare entities to ensure that all employees are vaccinated against COVID-19. The Plan also includes other topics of interest to employers, including requirements that large entertainment venues screen patrons for vaccine status upon entry, and expanded access to federal financial assistance for many businesses. As with all things COVID-related, guidance is ever-changing. There is a lot we do not know yet. OSHA, DOL, CMS, and other agencies will be publishing guidance soon. We will be monitoring and updating you as new information comes out. With that, here are the notable workplace directives from President Biden’s “Path Out of the Pandemic:”
Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly: The Department of Labor’s Occupational Safety and Health Administration (OSHA) has been directed to issue Emergency Temporary Standards (ETS) requiring all 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.” While nothing is ever certain, we anticipate the new ETS in the near future. During the press briefing late Thursday afternoon, the Administration noted that we should expect the ETS in “the coming weeks.”
Requiring Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government: After President Biden’s July announcement related to vaccinating federal workers, President Biden went further and signed an executive order requiring all federal works to be vaccinated. Similarly, he signed a new Executive Order that requires certain federal contractors to be vaccinated. This federal contractor-related Executive Order tasks the Safer Federal Workforce Task Force to publish guidance by September 24, 2021. Of note, and unlike the large employer vaccination requirement above, the federal worker and federal contractor announcement does not directly note a testing alternative to the vaccination mandate.
Requiring COVID-19 Vaccinations for Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings: The Centers for Medicare & Medicaid Services (CMS) will be taking action to require 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. If this has a similar ring, President Biden issued similar requirements for nursing homes in August of 2021.
Requiring Employers to Provide Paid Time Off to Get Vaccinated: In order to mandate vaccinations, President Biden also directed OSHA to require covered employers to provide paid time off for employees to get vaccinated or to recover if they are under the weather post-vaccination. Again, this issue will be implemented through the ETS. For those who might want to anticipate what this may look like. OSHA may very well mimic the COVID-19 ETS for healthcare on this topic (See 29 CFR 1910.502(m))
Requiring Staff in Head Start Programs, Department of Defense Schools, and Bureau of Indian Education-Operated Schools to be Vaccinated: The President’s plan includes the requirement that all teachers, and staff at Head Start and Early Head Start programs, teachers and child and youth program personnel at the Department of Defense (DOD), and teachers and staff at Bureau of Indian Education-operated schools get vaccinated. The Department of Health and Human Services (HHS) will initiate rulemaking to implement this policy for Head Start and Early Head Start programs.
So, What Now?
If you are an employer who is impacted or who may be impacted, start thinking and planning how you will navigate the potential hurdles (legal, operational, budgetary, HR, PR, etc.). Hurdles may include policy requirements (including exemptions for disability and religious reasons), testing strategies (budgetary, logistical, etc.), vaccination management (administration, documentation, confidentiality, etc.), medical record collection, wage and hour implications, bargaining obligations for unionized workplaces, employee privacy, and others. Stay with us. We will be updating you as soon as we have additional information. In the meantime, please feel free to reach out to any member of our Labor & Employment Practice Group if you want to get a jump on these issues. We stand ready to help assist you in the consideration and development of mandatory vaccine policies, forms, and related training to meet your ongoing COVID-19 challenges.
Mark P.A. Hudson is an Attorney and Senior Vice President at Shuttleworth & Ingersoll, P.L.C. Mark’s work focuses on labor and employment compliance and counseling (including personnel policies and decisions, workplace investigations, affirmative action program compliance, wage and hour advice, and general employment counseling), labor and employment litigation (including equal opportunity, wrongful discharge, discrimination, sexual harassment and defense of employment-related claims), workplace training (including sexual harassment, workplace civility, bystander intervention, and a myriad of other training topics for supervisor, employee, and human resource professionals), privacy and data security compliance and litigation, and fair housing litigation and compliance.