On September 9, 2021, President Biden announced a sweeping action plan to address the ongoing COVID-19 pandemic in the United States, entitled The Path Out of the Pandemic. This plan is based on six pillars identified by the Biden Administration as critical to combating the COVID-19 pandemic, including: i) federal vaccination and testing mandates applicable to both public and private sector employees; ii) booster shots for the vaccinated population; iii) increased testing and masking requirements; iv) facilitation of further economic recovery; v) ensuring that schools remain open; and vi) improving care for those impacted by the COVID-19 virus.
New Department of Labor Rule Requires Large Employers to Implement COVID-19 Vaccine Mandates, Frequent Testing Protocols
As part of its plan, the Biden Administration has tasked the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule requiring employers with 100 or more employees to ensure that their workforce is fully vaccinated against the COVID-19 virus. Alternatively, for those who choose to remain unvaccinated, these employees will be required to produce a negative test result on at least a weekly basis before reporting to work. This vaccination mandate, which is expected to impact over 80 million private-sector workers, will be implemented by OSHA as an Emergency Temporary Standard (ETS). This forthcoming ETS is expected to require employers with 100 or more employees to offer paid time off for workers who might experience illness or side effects from the vaccination, in addition to offering paid time off for workers to get the vaccine. At least through September 30, 2021, employers with fewer than 500 employees can receive a tax credit associated with any such leave under the American Rescue Plan Act. Employers that fail to comply with these requirements may face fines of up to $14,000 per violation.
Many of the details regarding the ETS are unclear at this time, and the Biden Administration has indicated that the federal government will provide clarifying information concerning the ETS, including when the new rule will take effect in the coming weeks.
We also expect that any ETS will face an immediate legal challenge regarding the authority of OSHA to promulgate the ETS and whether aspects of the ETS otherwise withstand constitutional scrutiny. Given that President Biden’s plan places direct obligations on states, those state administrations that have been vocal against mandates are expected to file lawsuits seeking to enjoin the ETS in whole or in part. While the courts have been in virtual unanimity in refusing to overturn vaccine mandates to date, the ETS likely will face meaningful scrutiny through the appellate courts, and any mandates could be delayed further depending on lower court rulings.
Updated CMS Rule Requires COVID-19 Vaccination for Healthcare Workers in Medicare and Medicaid-Certified Facilities
In addition to the upcoming OSHA rule, the Centers for Medicaid & Medicare Services (CMS) has announced that existing emergency regulations requiring vaccinations for nursing home workers will be expanded to include all healthcare facilities certified to participate in the Medicare and Medicaid programs. These facilities include, but are not limited to, hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.
The interim final rule, which seeks to implement these vaccination requirements, will be issued by CMS in October 2021.
Executive Orders on COVID-19 Vaccination Mandates for Federal Employees and Contractors
President Biden has also issued Executive Orders implementing COVID-19 vaccination requirements for both federal employees and federal contractors. The Order specific to federal employees requires COVID-19 vaccinations for all such employees. The Safer Federal Workforce Task Force (the “Task Force”) is directed to provide additional guidance concerning the implementation of the Executive Order by September 16, 2021, and the Biden Administration expects that unvaccinated federal employees will have approximately 75 days to get vaccinated.
As it relates to federal contractors, the Executive Order requires them to include a clause in all federal contracts mandating compliance with the Task Force’s pandemic protocols. The Task Force is required to provide additional guidance regarding these contractual requirements by September 24, 2021.
In the case of both Executive Orders, the vaccine mandate will include exceptions for legally recognized reasons, such as religious objections or disabilities under the Americans with Disabilities Act.
The Path Forward
While the general contours of the Biden Administration’s plan have been made public, many of the details associated with the upcoming vaccination requirements, including implementation specifics, are not yet certain. Given the massive scope of these new vaccination mandates, we expect to offer additional guidance in the coming weeks once the rules have been finalized.