What Will the Biden/Harris COVID-19 Plan Mean for Business?

Pillsbury Winthrop Shaw Pittman LLP

The incoming Biden Administration promises a more nationalized approach to combatting the COVID-19 public health crisis, plus a large economic stimulus response focused on unemployment, paid leave, state and local government support and support to small- and medium-sized businesses.

TAKEAWAYS

  • An incoming Biden/Harris Administration aims to nationalize the COVID-19 response through universal access to testing, increased availability of protective equipment and treatment, as well as a push for a mask mandate.
  • The approach contemplates a significant expansion of the domestic supply chain for personal protective equipment and testing and treatment technologies, as well as the continuing accelerated development of diagnostics, therapeutics, and vaccines.
  • The economic response envisions expanded health care coverage, unemployment, and sick leave, as well as federal aid to small- and medium-sized businesses and state and local governments.

With the sharp rise in daily COVID-19 cases happening nationwide, President-elect Joe Biden and Vice President-elect Kamala Harris have vowed to tackle COVID-19 with a more centralized, national public health and economic response program upon taking office on day one. In addition, they will seek to re-establish the United States as a global leader on health care issues by reversing the U.S.’s withdrawal from the World Health Organization (WHO) and by rallying world leaders to lay the groundwork for sustained global health security.

Biden and Harris have already begun taking steps to transform their proposals into action, announcing the appointment of a 12-member COVID-19 task force convening on November 9, 2020. The task force will be co-led by former Surgeon General Vivek Murthy, former Food and Drug Administration Commissioner David Kessler and Yale University professor Marcella Nunez-Smith. It will also include Luciana Borio, former assistant FDA commissioner; Rick Bright, former director of the Biomedical Advanced Research and Development Authority (BARDA); Zeke Emanuel, former Obama administration health policy adviser; Atul Gawande, Brigham and Women’s hospital professor of surgery; Celine Gounder, NYU Grossman School of Medicine assistant professor; Dr. Julie Morita, former Chicago public health commissioner; Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota; Loyce Pace, executive director of the Global Health Council; Dr. Robert Rodriguez, UCSF emergency medicine professor; and Eric Goosby, former Ryan White Care Act director.

Separately, the Biden transition team announced it had appointed health advisers on COVID-19 who will work closely with the advisory board. These include Dr. Beth Cameron, vice president for global biological policy and programs at the Nuclear Threat Initiative and former senior director for global health security and biodefense on the White House National Security Council staff; and Dr. Rebecca Katz, a professor and director of the Center for Global Health Science and Security at Georgetown University Medical Center.

The Biden/Harris plan is also expected to create opportunities for collaboration with the private sector and provide stimulus funding to businesses impacted by the pandemic. It is also likely to require significant private sector cooperation. Key elements of the Biden/Harris COVID-19 plan that are expected to have direct or indirect implications for the private sector are discussed below.

National Public Health Response
The Biden/Harris plan calls for a comprehensive public health response emphasizing access to testing, preventive care and treatment for COVID-19 nationwide; increased production of personal protective equipment as well as diagnostic tests, therapeutics and vaccines; ensuring effective surge capacity for hospitals and telemedicine; and establishing a sufficiently resourced, permanent health care workforce.

Free testing. The incoming Administration aims to make free testing available nationwide, with at least 10 mobile testing sites and drive-through facilities established per state to speed testing and millions of tests made available. Throughout this process, private labs and manufacturers would have opportunities to work with the Centers for Disease Control & Prevention (CDC) to ensure adequate production capacity, quality, control, training and technical assistance. CDC is expected to collaborate with the private sector to expand sentinel surveillance programs and other surveillance programs to expand access to vulnerable populations, such as nursing home patients and people with underlying medical conditions.

Free access to treatment. Free access to preventive care and treatment for COVID-19 that would be made available regardless of insurance coverage is a key goal. The incoming Administration aims to make this coverage possible by amending existing laws such as the Public Health Service Act to expand access to testing, treatment and preventive services necessary to address a public health emergency. Commercial plans would be required to cover such services as COVID-19 testing and any eventual vaccine with no copayments and deductibles, including for the visits themselves. Public health programs would also be required to extend the same coverage. The plan calls for authorizing the National Disaster Medical System (NDMS) to reimburse health care providers for COVID-19-related treatment costs not directly covered by health insurance and ensuring federal matching dollars to secure maximum Medicaid enrollment for currently eligible populations.

Increased access to personal protective equipment. The incoming Administration promises to work with businesses to expand production of personal protective equipment, including masks and gloves, and additional products such as bleach and alcohol-based hand sanitizer. It is expected to incentivize greater production, including large-scale volume purchasing if necessary and removing all relevant trade barriers to their acquisition. To reduce dependence on foreign sources, the U.S. government would be pushed to work with the private sector to map out supply chains for critical health care supplies and create a strategic plan to build redundancies and domestic capacity, in particular with American-sourced and manufactured pharmaceutical and medical supply products.

Accelerated development of countermeasures. Focus would be placed on accelerating the development of rapid diagnostic tests, therapeutics and medicines, and vaccines. The Biden administration would urge federal agencies, including the National Institutes of Health (NIH), Biomedical Advanced Research and Development Authority (BARDA), and the Food and Drug Administration (FDA) to accelerate development, and prioritize review and authorization of COVID-19 countermeasures.

Hospital capacity and telemedicine surge. Hospitals are expected to see a surge in capacity, so a key strategy is to invest in telemedicine, including a surge in tele-emergency room, tele-ICU care and telemedicine. Hospitals would be instructed to surge care for 20% more patients than current capacity through flexible staffing, use of telemedicine support, and delaying elective procedures. Federal agencies would be tasked with being prepared to set up multi-hundred bed temporary hospitals in any city on short notice. The Department of Defense (DOD) would have to be prepared for potential deployment of military resources and work with governors to prepare for potential deployment of National Guard resources to provide medical facility capacity, logistical support and additional medical personnel, if necessary.

Health care workforce. The Biden/Harris plan calls for establishing and managing a permanent, professional, sufficiently resourced public health and first responder system that would engage in scaling up biomedical research, deploying rapid-testing capacity, ensuring robust nationwide disease surveillance, sustaining a public health and first responder workforce, establishing a flexible emergency budgeting authority, and mobilizing the world to ensure greater sustained preparedness for future pandemics.

Emergency Temporary Standard. The incoming Administration would urge the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard to increase safety standards for frontline workers. The Emergency Temporary Standard would require health care facilities to implement comprehensive infectious disease export control plans and increase the number of OSHA investigators. There would also be closer collaboration between state occupational safety and health agencies, state and local governments, and labor unions to ensure coordinated protections for frontline workers.

National mask mandate. The incoming administration has suggested that President-elect Biden would issue an executive order imposing a national mask mandate on federal property and potentially on public transportation. In addition, he would pressure governors and local leaders to enact mask mandates where they do not exist. Currently more than 20 states require masks to be worn in private businesses and public places. Upon taking office, President-elect Biden would push for similar mandates nationwide.

National Economic Response
The Biden/Harris national economic response would seek to increase support to workers, families and businesses impacted by the pandemic. Broadly, these measures would likely constitute employment benefits such as emergency paid leave, expanded unemployment compensation, and additional funding for small- and medium-sized businesses, among other measures for frontline workers and caregivers. To achieve this, there would need to be increased federal spending and a new state and local emergency fund to provide governors and mayors flexibility to target health and economic spending. The Biden/Harris plan states that the federal government will be ready to dedicate “whatever it takes,” without delay, to meet public health needs and strengthen the U.S. economy.

Emergency paid leave and caregiving leave. A key aspect of the Biden/Harris plan includes expanding emergency paid leave to all those affected by the outbreak. Biden and Harris support the FAMILY Act sponsored by Senator Kirsten Gillibrand (D-NY) and Representative Rosa DeLauro (D-CT) to permanently provide 12 weeks of paid family medical leave. They also will likely push for the Health Families Act spearheaded by DeLauro and Senator Patty Murray (D-WA), which would ensure workers receive seven days of paid sick leave for routine personal and family health needs, as well as time for survivors of domestic violence and sexual assault to seek services.

Separately, to address the additional burdens of the pandemic, the Biden/Harris plan supports an emergency paid leave program that would require 14 days of paid leave for those who are sick, exposed, or subject to quarantines. Employers would not bear any additional costs for such additional leave. However, businesses would be expected to support paid sick leave and seek reimbursement—or deduct against expected tax payments—to ensure workers are not discouraged from reporting symptoms of COVID-19.

The emergency paid leave plan would create a federal fund to cover 100% of weekly salaries or average weekly earnings capped at $1,400 a week—the weekly amount that corresponds with about $72,800 in annual earnings. This will be in addition to existing paid leave provided by a business’s existing policies. The plan would cover paid leave for sick workers, workers caring for family members or other loved ones, people unable to continue work because they are at increased risk of health complications due to COVID-19, and domestic workers, caregivers, gig economy workers, and independent contractors. The plan would also cover childcare assistance for those dealing with school closings.

Unemployment benefits. Access to unemployment benefits would be broadened and expanded. State offices would be expected to receive increased federal support to withstand high demand, and eligibility requirements will likely be adapted to the current economic challenges created by the pandemic, e.g., waiving “work history” and “actively searching for work” requirements. Employers will be incentivized to expand work-sharing arrangements for workers where payroll cuts are needed due to lower economic demand, diminished travel, or cancelled orders. Domestic workers, caregivers, gig workers and independent contractors who can show that their hours have been cut back due to COVID-19 or to resulting economic impacts can also expect to receive economic relief.

Schools. The Biden/Harris plan pledges to expand assistance to certain federal childcare centers and to schools to cover extra costs, including efforts to continue remote education or after-school activities.

Funding for small- and medium-sized businesses. The Biden/Harris plan proposes to establish a temporary small business loan program designed to address unanticipated shortfalls in revenue by offering short-term, interest-free loans to small- and medium-sized businesses. Increased funding capacity would be made available for the Small Business Administration, and funds would be provided to states to enable increased lending to small businesses. The Federal Reserve would be urged to consider policies to address severe credit and liquidity challenges related to the fallout from COVID-19 to prevent cutbacks, shutdowns and layoffs at small businesses and other affected industries.

State and Local Emergency Fund. Biden intends to fund the national economic response in part through a new State and Local Emergency Fund designed to give state and local leaders additional funding to meet critical health and economic needs. Resources in the fund will be allocated according to a formula: 45 percent to state governments; 45 percent to local governments; and 10 percent reserved for special assistance for “hot-spots” of community spread.

Governors and mayors would be given significant flexibility to ensure that they can target their health and economic spending to meet their respective needs, including for the following usages:

  • Paying for medical supplies and expanding critical health infrastructure, including building new or renovating existing facilities;
  • Expanding hiring where needed including health care and emergency services workers, caregivers in nursing homes, drivers, childcare workers, substitute teachers, and others;
  • Overtime reimbursements for health workers, first responders, and other essential workers;
  • Mortgage & rental relief for impacted workers;
  • Employer assistance for job maintenance;
  • Interest-free loans for small businesses;
  • Funding existing and new local and state jobs initiatives;
  • Cash assistance, e.g., cash payments to working families, unpaid caregivers, seniors, those with disabilities, and children, or a child allowance; and
  • Targeted refundable tax relief, e.g., to fund new legislation to expand State Earned Income Tax Credit relief.

The U.S. Leading on Global Health
The Biden/Harris plan for tackling the domestic COVID-19 crisis domestically would be coupled with efforts to lay the groundwork for an increased emphasis on sustained global health security. Highlights from the proposal to reinstate the U.S. as a global leader on health care issues include the following:

  • Direct USAID in coordination with State Department, DOD, the Department of Health and Human Services, and the CDC, to mobilize an international response;
  • Call for the immediate creation of a Global Health Emergency Board to harmonize crisis response for vulnerable communities;
  • Reactivate and expand the Obama-era Global Health Security Agenda;
  • Fully staff all federal agencies, task forces, and scientific and economic advisory groups focused on health security;
  • Establish an Assistant Secretary at the State Department to oversee an office of Global Health Security and Diplomacy, and engaging regional bureaus and embassies to improve health security readiness, governance, and global coordination;
  • Prioritize sustained funding for global health security to strengthen joint standing capacity for biosurveillance and health emergency response and global pandemic preparedness;
  • Create a Permanent Facilitator within the Office of the United Nations Secretary-General for Response to High Consequence Biological Events to facilitate crisis coordination among health, security and humanitarian organizations;
  • Fully resource the WHO, especially its Contingency Fund for Emergencies;
  • Build a global health security workforce and lift barriers to the education of public health professionals; and
  • Fight climate change as a driver of health threats including by recommitting the United States to the Paris Agreement.

[View source.]

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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