Arent Fox

On September 9, 2021, President Biden announced that COVID-19 vaccinations will be mandatory for a significant swath of the United States workforce. The White House announced a comprehensive, six-pronged plan to combat COVID-19 variants while protecting the economy and keeping schools open and safe.
 

President Biden’s COVID-19 Action Plan is available here.

Large Employers Must Ensure Their Employees Are Fully Vaccinated Or Tested Weekly

The United States Department of Labor and Occupational Safety and Health Administration (OSHA) are developing an Emergency Temporary Standard (ETS) requiring that employers with 100 or more employees must ensure their workforce is fully vaccinated or tested at least weekly before coming to work. This rule is expected to be issued in several weeks. It is estimated to impact over 80 million private sector workers.

Requiring Employers to Provide Paid Time Off to Get Vaccinated

To continue efforts to ensure that no employee loses any pay because they get vaccinated, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated and to recover if they have post-vaccination side effects. This requirement will be implemented through the ETS.

Federal Employees and Government Contractor Employees Must be Vaccinated

On September 9, 2021, President Biden signed a series of Executive Orders that require all Executive Branch employees to be vaccinated. One of the Executive Orders requires this to be extended to employees of government contractors that conduct business with the federal government. The Safer Federal Workforce Task Force (Task Force) will issue further information on these requirements by September 16, 2021 for Executive Branch employees and September 24, 2021 for federal contractors.

There is no option for weekly testing for those impacted by these Executive Orders. However, it remains clear that disabled employees who cannot safely be vaccinated and those with sincerely held religious beliefs precluding vaccination will need to be accommodated.

The Executive Orders do not specify a vaccination deadline. The Biden administration has indicated that employees will have 75-days in which to become fully vaccinated.

The Department of Defense, Department of Veterans Affairs, Indian Health Service, and the National Institute of Health will implement their previously announced vaccination requirements covering 2.5 million people.

Vaccinations Required for Employees of Hospital and Health Care Settings that Receive Medicare and Medicaid Funds

The Centers for Medicare and Medicaid Services (CMS) is requiring COVID-19 vaccinations for employees in the majority of health care settings that receive Medicaid and Medicare reimbursements. This includes hospitals, dialysis centers, ambulatory surgical facilities and home health agencies. This is in addition to a recent vaccine requirement announced by CMS which applies to nursing home and hospital staff and other settings regulated by CMS, including clinical staff, volunteers, and those not involved in direct patient, resident or client care.

These requirements will apply to approximately 50,000 providers and impact the majority of health care workers in the United States.

Is the Vaccine Mandate Constitutional?

As expected, some pundits have challenged the constitutionality of the vaccine mandate by claiming it infringes on the constitutional right to liberty. A number of leading legal scholars have opined that the mandate will likely pass constitutional muster if challenged in the courts. In a 1905 case, Jacobson v. Massachusetts, the United States Supreme Court upheld the police power of the state to protect public health by requiring mandatory smallpox vaccinations. The Court’s holding seems to be as relevant to early twentieth century smallpox concerns as it is to the COVID-19 pandemic, but others will likely assert otherwise.

Given the Jacobson holding, it seems likely, although not definite, that the current Supreme Court will find the Biden Administration’s vaccine mandates constitutional.

When Will More Information Be Available?

We expect OSHA will issue its ETS in approximately one month. As noted, the Task Force will issue further information by September 16, 2021 for Executive Branch employees and by September 24, 2021 for federal contractors. We expect detailed guidance to be issued by the relevant federal agencies which should clarify the scope and requirements of the vaccine mandates. We also anticipate a number of legal challenges to the enforcement of these mandates.

What Steps Should Employers Take Now?

While we await specific federal agency guidance we recommend that large employers, government contractors and those who receive Medicaid and Medicare reimbursement evaluate their COVID vaccine policies and prepare to implement (if not already in place) a mandatory vaccination program with safeguards for those employees who cannot be vaccinated due to medical concerns or sincerely held religious beliefs.

Unionized employers should begin negotiations with their Unions as soon as possible to address the impact and implementation of mandatory vaccinations on bargaining unit members.

We are closely monitoring these developments and will issue additional alerts as more details are made available.

[View source.]

×