Q: What do employers need to know about the Biden administration’s new vaccine mandate?

A: Following the Biden administration’s September 9 announcement, employers are brimming with questions about the forthcoming White House COVID-19 vaccination mandate plan. Must all employers mandate the vaccine? Which employees are covered? When will the requirements take effect? What steps should employers take now to prepare? These and many other questions are yet to have complete answers. With the new rules expected to impact as many as 100 million workers (and with them, a significant number of businesses), employers should begin to prepare as soon as possible. Here’s what we know and what employers need to consider.

OSHA ETS for Employers with More Than 100 Employees

OSHA has been directed to draft an Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or requiring any unvaccinated workers to produce a negative test result on at least a weekly basis. Employers also must provide paid time off for employees to get vaccinated and recover from any related side effects. However, many questions about this new requirement remain unanswered, including:

• who will pay for the COVID-19 tests,
• which tests will be considered adequate,
• how to determine the 100-employee threshold (companywide or locationwide and how joint employment will factor in),
• whether the ETS will cover remote employees,
• whether employers will continue to be required to provide exemptions, and
• how employers can verify the vaccination status of their workforce.

It is equally unclear how quickly OSHA will issue the new ETS, although the Department of Labor said it will be completed as “as expeditiously as OSHA can issue it.”

Once OSHA issues any ETS, court challenges will likely follow that may impact OSHA’s ability to enforce it. If and when an ETS is finalized and in effect, however, it will take immediate effect in the 29 states where federal OSHA has jurisdiction. When federal OSHA promulgates an ETS, states with their own OSHA-approved occupational safety and health plans (e.g., Arizona, North and South Carolina, Oregon, and Virginia) will have a choice between adopting the ETS or measures “at least as effective as” the new federal standard, or they may show that an existing state standard covering this area is “at least as effective” as the new federal standard. See 29 CFR 1953.5(b). State or local government mandates or guidance (e.g., legislative action, executive order, health department order) that go beyond and are not inconsistent with the new ETS will not be affected by the new ETS.

Federal Contractors

The president’s September 9 announcement also stated that new federal contracts or new contract-like instruments (including a new solicitation, extension, renewal, or exercise of an option) must include a clause indicating that the contractor and any subcontractors will comply with all applicable guidance for their workplace published by the Safer Federal Workforce Taskforce. Exceptions to the list of covered contracts and employees include contracts below the threshold for government bidding procedures (generally $250,000) or employees working outside the U.S.

Guidance outlining specific requirements for federal contractors covered by the new rule is expected by September 24. The guidance will outline “definitions of relevant terms,” “explanations of protocols required of contractors and subcontractors,” and “any exceptions” to the vaccination mandate. Currently, all federal employees and onsite federal contractors must show proof of vaccination or submit to weekly testing, among other workplace safety measures. However, the new plan no longer appears to include a testing alternative for federal employees, contractors, and subcontractors employed by the federal government. Similar requirements will likely be included for the contractors noted above in the forthcoming September 24 guidance.

Health Care Workers

The announcement also impacts roughly 17 million health care workers employed by hospitals and other institutions that accept Medicare and Medicaid reimbursement. Specifically, the Centers for Medicare & Medicaid Services (CMS) will now require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The announcement suggests covered employees do not have the option to get routinely tested as an alternative to vaccination. But specifics remain to be confirmed as CMS develops an Interim Final Rule to implement the vaccine requirement that will be issued in October. This action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff and staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff not involved in direct patient, resident, or client care.

What Should Employers Do Now?

While many employers considered mandating the vaccine before the announcement, now all employers with 100 or more employees will be required to do so under the ETS. Although we anticipate the ETS will provide some much-needed detail, employers should consider preparing now. The Troutman Pepper COVID-19 Task Force has counseled a variety of clients using comprehensive approaches to workforce vaccination, and our team is happy to assist you or discuss the potential impact on your business.