Biden Issues Sweeping Measures, Including Vaccine or Test Mandate, as Part of New COVID-19 Action Plan, Part I: Private Employers

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On September 9, 2021, President Biden announced a sweeping six-pronged plan aimed at addressing the nation’s most recent surge of coronavirus cases fueled by the formidable delta variant. As part of that plan, Biden declared expansive measures, including vaccine mandates that are projected to impact over eighty-million employees in private sector businesses, and have far reaching impacts for employers across multiple industries. As such, employers should be mindful of the following policies to be implemented under Biden’s Action Plan in the coming weeks and months:

All Employers With 100 or More Employees Will be Required to Have Their Employees Vaccinated or Tested for COVID-19 Weekly

As part of his Action Plan, the president has directed the Occupational Safety and Health Administration (“OSHA”) to develop a rule mandating that all employers with 100 or more employees require that their employees either become fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis before reporting to work. OSHA will issue an Emergency Temporary Standard (“ETS”) to implement this requirement in the near future, to be followed by a formal departmental rule.

That the president has directed OSHA to carry out this mandate is not surprising, as OSHA is no stranger to enacting COVID-19 workplace safety measures. For instance, on June 21, 2021, OSHA enacted its first mandatory COVID-19 workplace safety rule for employers in certain healthcare-related settings (discussed in our June 24, 2021 blog post), which included, among other things, a paid leave component for vaccination, vaccination side effects, and employees that contract COVID-19. OSHA then subsequently revised its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (discussed in our August 26, 2021 blog post) initially published in January of 2021, which in part, encourages fully-vaccinated employees to wear masks in all public indoor settings in areas with high and substantial COVID-19 transmission. While we will not know the full scope and parameters of OSHA’s new rule until the ETS is formally issued, we can look to these prior OSHA measures to gain insight as to what may lie ahead.

However, from a practical stand point, the forthcoming rule raises several questions for employers in terms of its conditions, enforcement, and deadlines for compliance. Further, the prospective rule also raises specific questions for employers with employees that opt for weekly testing rather than vaccination. Typically, employer mandated testing is required to be paid for by the employer. However, in a situation where an employee that has the option to be vaccinated, chooses to be tested weekly instead, it is unclear whether such testing will be considered “employer mandated” under the new rule, (as that has not been addressed) which would require an employer to cover the cost of such testing. It is also unclear whether such a rule from OSHA will shed light on whether an employer must provide some form of paid leave for the time spent by employees getting tested weekly.

We are currently monitoring the development of these new rules, and hope that they will address such concerns. Once the formal ETS is available, we will discuss its parameters in a subsequent blog post.

All Employers With 100 or More Employees Will be Required to Provide Paid Time Off for Employees to Get Vaccinated

Under the new plan, OSHA will also be issuing an ETS mandating that all employers with 100 or more employees provide paid time off for employees to get vaccinated and recover from any vaccination-related side effects. That rule will likely mirror OSHA’s June 21, 2021 rule, (discussed above and in our prior blog post) with some modifications for implementation across multiple industries and work settings. We will also discuss terms of the rule in a subsequent blog post once available.

All Federal Employees and Employees of Federal Contractors Will Be Required to be Vaccinated

The president also announced the issuance of two Executive Orders mandating vaccination for all federal executive branch employees, and employees of contractors that do business with the federal government. However, the Executive Order issued with respect to government contractors does not explicitly include a vaccine mandate. Rather, the Order requires compliance with new COVID-19 protocols to be announced on September 24, 2021, which will likely include a vaccine mandate and other related directives. For more information on how the new plan may impact government contractors, please see the companion blog post prepared by our colleagues in Miles & Stockbridge’s Government Contracts Group for more details.

All Medicare and Medicaid Participating Health Care Providers Will be Required to Have Their Employees Vaccinated

Biden has directed The Centers for Medicare & Medicaid Services (“CMS”) to take action requiring that employees 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) be vaccinated. The White House has advised that this action will build on the vaccine mandate recently issued by CMS for nursing facilities, 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 who are not involved in direct patient, resident, or client care.

Looking ahead, it is currently unclear when the mandates announced under Biden’s plan will take effect. However, Miles & Stockbridge is monitoring the development of these new protocols, and will provide more information once available. In the interim, employers are advised to contact their employment and/or government contracts counsel to determine the new measures’ potential applicability to ensure timely compliance once the various mandates are in effect.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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