The Biden Administration Puts the Burden on Employers

Smith Anderson

On September 9, 2021, President Biden announced several updates to his plan for combatting the COVID-19 pandemic. Although media reports have led some to believe that President Biden’s actions have imposed an immediately effective mandate for private sector employers with 100 or more employees to require employees to be vaccinated against COVID-19 or to undergo weekly testing, no such requirement exists at this time. Further rules and guidance will be issued. This alert summarizes the President’s announcement with respect to vaccine and testing requirements for larger private sector employers, as well as expected vaccination requirements for federal contractors and certain healthcare employees.

Current Employer Vaccination and Testing Mandates and Policies

Many employers have already instituted or are in the process of implementing mandatory vaccination or periodic COVID-19 testing requirements for their workforces, particularly since the Pfizer vaccine received final FDA approval on August 23, 2021. In its guidance issued on May 28, 2021, the U.S. Equal Employment Opportunity Commission recognized that the federal discrimination laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19 so long as employers consider requests for accommodations based on an employee’s disability (as required by the Americans with Disabilities Act) or sincerely held religious beliefs (as required by Title VII of the Civil Rights Act of 1964, as amended). Beginning on August 13, 2021, the Department of Labor’s Occupational Safety and Health Administration ("OSHA") suggested that employers "consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated." President Biden’s recent announcements should not immediately affect or impede any existing employer vaccination/testing mandates or any ongoing efforts to implement vaccination/testing mandates, but employers should be aware that changes may need to be made to their policies in light of these new administration initiatives.

New Vaccination/Testing Requirements for Private Sector Employers

President Biden instructed OSHA to develop an Emergency Temporary Standard ("ETS") that will require all private sector employers with 100 or more employees to ensure that their workforces are fully vaccinated or require any workers who remain unvaccinated to produce a negative COVID-19 test result on at least a weekly basis before coming to work. President Biden noted that the rule also will require those employers to provide paid time off for workers to receive vaccinations and to recover if they are "under the weather" following their vaccinations. The White House estimates that the ETS will affect approximately 80 million private sector employees.

There is no timetable for issuance of the ETS, and the President’s announcement leaves many questions unanswered. OSHA’s ETS will likely need to address all of these questions and more, but here are a few obvious issues that await resolution: Will the requirements apply to remote workers? Will employers or employees be responsible for the costs of the vaccines and tests? Must employers provide paid time off for testing? How will employers be required to verify employee vaccination status? Will an employer be allowed to consider requests for accommodations for religious objections to vaccines and/or testing? What does "all employers with 100 or more employees" really mean? Will all employees count or just full-time employees? Will the threshold apply to the number of employees company-wide or only at specific locations? Will headcounts of separate but related companies be combined for purposes of the 100-employee threshold?

While business groups such as the U.S. Chamber of Commerce have issued statements in favor of these Biden initiatives, others have requested clarifications or questioned whether OSHA will be able to justify the standard under the law. While OSHA typically only issues new rules following a "notice and comment" period, during which affected parties can express concerns (often resulting in modifications to rules), OSHA can skip this step if it believes circumstances require faster action. OSHA recently took this approach with the ETS for Healthcare, issued on June 17, 2021, but the Healthcare ETS was a departure from OSHA’s past practice and previous emergency rules have been successfully challenged where OSHA did not follow the notice and comment process. The specific grounds for an OSHA ETS are an agency finding that workers are in "grave danger" and that an emergency rule is "necessary" to protect them from "exposure to toxic substances or agents determined to be toxic or physically harmful." These grounds have been used in the past to support emergency rules where specific contaminants are at issue (such as asbestos or pesticides). OSHA generally has refrained from issuing emergency rules regarding worker exposure to previously identified viruses, partly because they are widespread and partly because causation can be so difficult to prove with any certainty, but COVID and its impact on the workplace have created the most challenging environment since OSHA’s inception in 1970. In any event, legal challenges to the ETS are expected. In the meantime, larger private sector employers should begin preparing to be able to comply with any vaccination and/or testing requirements that may be imposed.

New Vaccination Requirements for Federal Contractors

In addition to the announcement regarding the ETS, President Biden signed an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors that will require many contractors doing business with the federal government to mandate that their employees be vaccinated, but the Executive Order does not outline the precise requirements. Instead, it calls on the Safer Federal Workforce Task Force to issue guidance by September 24, 2021 that will include explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance. The Executive Order became effective immediately, but it effectively applies only to covered contracts entered into, extended or renewed, or options to be exercised, on or after October 15, 2021. The requirements will apply to new contracts, solicitations for contracts, extensions or renewals of existing contracts, or exercises of options on existing contracts if: (1) it is a procurement contract for services, construction or a leasehold interest in real property; (2) it is a contract for services covered by the Service Contract Act; (3) it is a contract for concessions, including any concessions contract excluded by the Department of Labor regulations at 29 C.F.R. 4.133(b); or (4) it is a contract entered into with the federal government in connection with federal property and related to offering services for federal employees, their dependents or the general public. The requirements will not apply to employees who perform work outside the United States or its outlying areas, subcontracts solely for the provision of products, grants, certain contracts with Indian Tribes or contracts or subcontracts whose value is less than the simplified acquisition threshold.   

New Vaccination Requirements in the Healthcare Industry

Previously, the Biden Administration had instructed the Centers for Medicare & Medicaid Services ("CMS") to issue a rule requiring COVID-19 vaccines for workers at all long-term care facilities that receive Medicare or Medicaid funding. Now, the administration also has directed CMS to take action to require COVID-19 vaccines for workers in most healthcare settings that receive Medicare or Medicaid reimbursements, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. The administration estimates that these requirements will apply to approximately 50,000 providers and will cover the majority of healthcare workers across the country.

As noted above, many important details about the requirements for large private sector employees, federal contractors and healthcare employers have yet to be announced. Please stay tuned and continue to monitor developments in this area. Employers who have already launched vaccination/testing mandate policies will be better prepared to address any new requirements that will arise from these Biden initiatives. Other employers are well advised to begin preparations.

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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