Federal Government Announces COVID-19 Vaccination or Testing Requirements for Many Private Employers

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

On September 9, President Joe Biden announced plans to chart a “Path out of the Pandemic” given the recent rise of COVID-19 cases in the United States. In order to achieve the top priority of vaccinating as many Americans as possible, the president said he would take regulatory action to induce more individuals to get vaccinated. This includes a new Occupational Safety and Health Administration emergency temporary standard applicable to many private employers, as well as executive action with respect to federal employees and contractors.

Private Employers
With respect to private employers, President Biden has instructed OSHA to use its regulatory authority to promulgate an emergency temporary standard as soon as possible. The standard will require all employers with 100 or more employees to implement a mandatory vaccination policy or require that unvaccinated employees submit to weekly testing.

On September 10, OSHA representatives provided the following additional information about the imminent standard:

  • It will apply to employers with 100 or more employees total, not per location.
  • It will be consistent with existing federal contractor requirements.
  • It will apply solely to employees on site or at the office, not remote workers. However, hybrid employees will have to comply.
  • Employers must provide paid time off or permit employees to use existing paid time off to get vaccinated and to recover from any vaccination side effects.

Many questions remain to be answered once the formal standard is published. For example, OSHA has not answered whether the expense of weekly testing will be borne by the employer, employee, or subsidized by the federal government.

Federal Employees and Contractors
In addition, the administration released an executive order “requir[ing] COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.” These exceptions continue to be limited to religious or disability accommodations only. The executive order said there will be specific implementation guidance within seven days.

The administration announced further executive branch action that requires all “contracts and contract-like instruments” entered into on October 15, 2021, or after to include a clause that the contractor and any subcontractors (at any tier) will comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force. This upcoming guidance is likely to include mandatory vaccination requirements for all workers.

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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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