President Pushes “Path out of the Pandemic” COVID-19 Action Plan: Key Takeaways for Employers
Labor & Employment 09/13/21 Otto Immel, Lindsey Davis, Kaitlin Phillips, Brenna Wildt
Late last week, President Biden announced a surprisingly sweeping, six-pronged national strategy to combat COVID-19 and the ever-worsening impact of the Delta variant.
Under the first prong, “Vaccinating the Unvaccinated,” Biden’s plan requires all employers with 100+ employees, the federal government, federal contractors, and specified healthcare entities to enforce mandatory vaccination programs for their employees. The plan also includes other points of interest for employers, namely expanded access to federal financial assistance, and proof of vaccination requirements for large entertainment venues.
Employers with 100+ Employees
The Department of Labor’s Occupational Safety and Health Administration (“OSHA”) will issue an Emergency Temporary Standard (“ETS”), which is to require all employers with 100 or more employees to ensure each employee is either (1) fully vaccinated, or (2) provides a negative COVID test result at least once per week. Employers will be required to provide paid time off for employees to get vaccinated and recover from any vaccination side effects. OSHA is expected to issue the ETS within the coming weeks.
Federal Employees and Contractors
President Biden also signed two executive orders, the first of which requires all executive branch employees to get vaccinated, subject to certain exceptions. This order modifies Biden’s July 29, 2021 order, which required vaccination or regular testing and imposed other requirements for federal employees within certain departments. President Biden’s new order eliminates the option for federal employees to be regularly tested in lieu of vaccination. Guidance will be issued by the Safer Federal Workforce Task Force (the “Task Force”) on or before September 16, 2021.
The second executive order requires employers with federal contracts to comply with all guidance to be issued by the Task Force, which is expected to be released on or before September 24, 2021. The order does not specifically mandate vaccinations; but, the action plan states that vaccine mandates will “be extended to employees of contractors that do business with the federal government.”
Certain Healthcare Facilities
Vaccinations will be mandatory for workers in most health care settings that receive Medicare or Medicaid reimbursement, including hospitals and home health agencies. This mandate will come from the Centers for Medicare & Medicaid Services (“CMS”), and extends the one previously announced for nursing home staff. The new mandate will apply broadly to all staff and volunteers—even if they are not involved in patient, resident, or client care.
What Remains Unknown
Given the lack of current details about the requirements, the unprecedented nature of the President’s strategy for enforcing mandatory vaccinations for private sector employees through OSHA, and fervent promises from political opponents to challenge the legality of the Administration’s approach, employers are left with many unanswered questions related to this sweeping COVID-19 action plan. Some of the major questions include:
- Will employers of 100 or more employees be required to pay for mandated vaccinations and/or weekly testing?
- Will employers of 100 or more employees be required to compensate unvaccinated employees for time spent receiving weekly COVID tests?
- How will the limited availability of COVID testing resources impact testing obligations under OSHA’s forthcoming ETS?
- Will OSHA’s ETS require employers of 100 or more employees to provide medical and religious exemptions from the vaccine mandate?
- Will the additional available leave provisions of the Families First Coronavirus Response Act (“FFCRA”) be extended in some way beyond their current September 30, 2021 expiration?
Though many aspects of the action plan are uncertain—as is the ultimate enforceability of this novel pronouncement, particularly with respect to its implementation through OSHA—there are some relevant, immediate impacts for employers.
Key Considerations for Employers Right Now
The Plan’s announcement comes at a time when many employers have already begun considering implementing mandatory vaccination programs, and are at various stages of effectuating such policies. It therefore presents different considerations for employers depending on their stage of implementing mandatory vaccination:
- Employers Contemplating a Mandatory Program: For any employer in the process of determining whether a mandatory vaccination policy would benefit the workplace, these new vaccination requirements may constitute a strong factor in support of doing so. Employers hesitant about implementing a mandatory program for fear of losing employees who strongly oppose vaccination need not be as concerned about employee retention, considering that many other competing employers will also be required to implement mandatory programs. Additionally, employers worried about backlash over enforcing a mandatory policy now have the opportunity to shift onus for the policy decision to the federal government.
Conversely, an employer who has not yet implemented a mandatory vaccination program and who believes it is the best business decision to wait to do so until required, can defer doing so at least until OSHA’s ETS is published. In the interim, these employers should consider determining what percentage of their workforce is fully vaccinated (or plans to become so soon), so that they can make better informed plans if it becomes necessary to mandate vaccination (e.g., if only 40% of the organization is fully vaccinated, large employers may need to expend considerable resources getting employees vaccinated and/or arranging for weekly testing once OSHA issues its ETS).
- Employers About to Implement a Mandatory Program: For any employer who has plans to imminently effectuate a mandatory vaccination program, the Administration’s action plan should not delay implementation. In other words, any employer who was about to put in place such a policy should do so now—there is no benefit in waiting. In fact, implementing a mandatory program before OSHA enacts its ETS may help large employers avoid costs related to paid time off for vaccination and post-vaccination side effects, which covered employers are set to assume under the new OSHA standard. For the same reason, large employers who had plans to implement a mandatory vaccination program within a longer timeframe (e.g., allowing employees several weeks to submit proof of first vaccine dose) may consider speeding up implementation. Additionally, any employer who had plans to mandate vaccination only for some sectors of its workforce should now consider requiring it for all employees, as this is the standard expected under the forthcoming OSHA ETS.
- Employers Who Have Implemented a Mandatory Program: Most employers who have already implemented a mandatory program need only stay the course and monitor for additional federal guidance. Health care organizations and federal contractors who implemented a policy under which employees can be vaccinated or tested periodically will likely need to revisit and revise their policy following the enactment of the OSHA ETS. The Biden Administration has indicated that the testing alternative will no longer be a viable option. Other large employers who are implementing mandatory vaccination programs without a testing option should be ready to respond to questions regarding whether they will permit a test-out option; but, are not required to permit such an option now if disallowed previously.
As last week’s announcement makes clear, federal guidance on employer vaccination policies is rapidly evolving. Quarles & Brady will continue to monitor important developments related to the Administration’s COVID-19 action plan, particularly OSHA’s forthcoming ETS for employers with 100 or more employees.
Coming soon: As promised during our September 8 webinar, within the next week you will be receiving a follow-up FAQ document with additional COVID-19 information helpful for employers who are evaluating and implementing vaccination and testing programs.
For up-to-date guidance on how these developments may impact your organization, and for counseling on other timely pandemic-related management issues, please contact your local Quarles & Brady attorney or: