Ready or Not: What Employers Need to Know About the Biden Administration’s Upcoming Vaccination and Testing Requirements

Pullman & Comley - Labor, Employment and Employee Benefits Law

Earlier last week, the Biden Administration announced plans to implement sweeping new federal COVID-19 vaccination and testing requirements which will affect a wide-ranging number of employers and more than 100 million people. These mandates will be executed through various agencies as part of the administration’s COVID-19 Action Plan aimed to address the rapidly-spreading Delta variant. Summaries of these new rules, including which employers will be affected by each of them, are found below.

Employers With 100 or More Employees

As announced late yesterday, President Biden has asked the Occupational Safety and Health Administration (OSHA) to create a rule for private businesses with 100 or more employees to require their employees to be vaccinated or undergo weekly testing. The rule will also require such employers to provide paid time off to employees both to obtain the vaccine and to recover from any side effects. OSHA will be implementing this requirement through issuance of an Emergency Temporary Standard. Companies who fail to comply could face fines up to $14,000 per violation. By itself, this mandate is estimated to impact more than 80 million workers.

Federal Employees and Federal Contractors

The President also signed an executive order requiring vaccination for most federal employees and contractors (including subcontractors) who do business with the federal government. The order does not include an option to “test out” of the vaccination requirement through periodic diagnostic testing, but does permit limited exceptions for workers seeking religious or medical exemptions.

Health Care Workers

Finally, the Centers for Medicare & Medicaid Services (CMS) announced that it will be expanding its emergency regulation requiring nursing homes to implement mandatory employee vaccinations to include all health care facilities that receive Medicare and Medicaid reimbursements. This includes Medicare and Medicaid-certified hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies as well as physicians’ offices and other health care facilities. While the announcement did not specify an effective date or whether any exemptions will be permitted, CMS is likely to address these questions when it issues the modified regulation later this month.    

Head Start Programs

Head Start and Early Head Start teachers and staff will also be required to receive the COVID-19 vaccine.  The Department of Health and Human Services (HHS) has already announced that these employees must be vaccinated by January 2022.  HHS is expected to release its plan to implement this requirement in the coming weeks.

Issues to Consider

Employers and employees should note that these new rules will still be subject to exceptions for employees with medical conditions that preclude them from being vaccinated, and for employees with sincerely held religious beliefs that lead them to reject vaccination.  Employers must consider whether employees with these characteristics can be provided with “reasonable accommodations” that will allow them to perform the essential functions of their positions without imposing “undue hardship” on the employer.  (For some jobs, remote work may be such a reasonable accommodation.)  Employers may wish to consult counsel for guidance in complying with these requirements.

Another issue that is certain to arise under the new rules for private sector employers concerns the cost of testing for employees who choose not to be vaccinated (where the employer’s policy offers the testing option as an alternative to vaccination), or (where vaccination is mandatory) for employees who are exempted from vaccination for medical or religious reasons, but subjected to a testing requirement as part of the “reasonable accommodation” arrangement.  In general, insurance carriers are not paying for testing that is judged not to be medically required, and self-insured employers will likely take the same approach.  To date, it appears that employees who must be tested simply because they are unvaccinated and their employers require the testing as a precautionary measure  – and not because they are known to have been exposed to COVID-19 – will have to pay for their own tests.

Unanswered Questions

Despite the apparent breadth of these mandates, many questions remain unanswered. For example, we do not know precisely when these requirements will go into effect, nor do we know exactly which entities will be covered by each mandate. We expect further details will be released from OSHA, CMS, HHS and the Department of Labor in the coming weeks, as well as significant legal challenges to the mandates. 

Suggested Next Steps

The employers noted above who will be directly impacted by these requirements should immediately begin discussing the COVID-19 vaccination and testing policies and procedures they will need to implement or update. This will enable these businesses to ensure compliance with the new federal mandates as soon as they become effective and avoid significant operational disruptions and/or fines.

Those employers who are not directly affected by the new mandates should also take the opportunity to assess the vaccination status of their employees and implement or update their vaccination policies as necessary. Although vaccine mandates were few and far between only months ago, an increasing number of employers are beginning to view them as a valuable resource in the battle against COVID-19. As such, we expect to see this trend continue, furthered by both governmental requirements and employers’ own policies requiring vaccination.

Employers implementing vaccination policies should be sure to develop a plan to communicate the new requirements in a way that maximizes cooperation and compliance and minimizes detrimental impacts on employee morale. To the extent they have not already done so, employers should also create a procedure to receive and respond to an influx of religious and medical exemption requests from employees and consult with legal counsel as necessary to ensure exemption requests are handled properly to reduce the risk of legal exposure.

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