President Biden Issues Unprecedented COVID-19 Requirements for Private Employers and Government Contractors on National Scale

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PilieroMazza PLLCOn September 9, 2021, the Biden Administration announced sweeping updates to its national strategy to combat COVID-19. The updates come less than a month after the Food and Drug Administration fully approved the Pfizer-BioNTech vaccine and as the country continues to experience a rise in COVID-19 cases. The plan, which still leaves a number of unanswered questions, including in certain cases a timeline for implementation, is available here. Below is PilieroMazza’s summary of key updates to the Biden Administration’s vaccination plan, along with pending items for employers to watch.

  • Employers with 100+ Employees Will Be Required to Ensure Vaccination or Weekly Testing.
    The Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) will be issuing an emergency rule that requires public and private employers with at least 100 employees to ensure workers are vaccinated or else require weekly testing for unvaccinated workers. OSHA is expected to issue an Emergency Temporary Standard (ETS) to implement this requirement. Federal law provides the DOL Secretary with this authority where he finds that the ETS is necessary to address a “grave danger to workers.”
  • Employers with 100+ Employees Must Provide Paid Leave for Employee Vaccination.
    Employers with at least 100 employees will also be required to provide employees with paid time off to get vaccinated and recover from potential side effects after vaccination. The Families First Coronavirus Response Act currently provides covered employers with the option to provide this leave and receive a tax credit for time; however, this benefit is scheduled to expire on September 30, 2021.
  • Federal Employees and Contractors Will Be Required to Get Vaccinated.
    In July, the Biden Administration announced a vaccine mandate that obligated federal employees and onsite contractors to be vaccinated or face strict testing and masking requirements. We first wrote about the mandate here. Agencies have been rolling out a variety of agency-specific requirements since then. However, yesterday’s announcement will remove the option to opt for testing in place of vaccination. Two Executive Orders available here and here, also issued on September 9, 2021, provide some additional guidance. Specifically, by September 16, 2021, the Safer Federal Workforce Task Force (Task Force) is required to issue guidance regarding agency implementation of the vaccine requirement for federal employees. By September 24, 2021, the Task Force must also provide an explanation of protocols required of contractors and subcontractors to comply with the guidance. Agencies will eventually be tasked with incorporating a forthcoming Federal Acquisition Regulation clause that obligates compliance in new, renewed, and extended contracts.
  • Requiring Vaccinations for Healthcare Workers at Medicare and Medicaid Hospitals and in Healthcare Settings.
    The Centers for Medicare & Medicaid Services will require vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.

The Biden Administration—other than explaining in some cases that the mandates shall be subject to exceptions as required by law—has not addressed how it expects employers to respond to employee requests for medical and religious accommodations. The Administration has also not addressed whether companies subject to the testing alternative will be expected to pay for employee testing, though part of its plan includes expanding free testing at 10,000 pharmacies across the country. We expect additional details about implementation of the above requirements to be rolled out in the coming weeks, and covered employers will need to stay up to date on their obligations under the forthcoming mandates.

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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