Update: On Jan. 26, 2022, the Occupational Safety and Health Administration (OSHA) formally withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
Last week U.S. President Joseph Biden announced his COVID-19 action plan entitled Path Out of the Pandemic (the Plan). This announcement led to a flurry of activity, employee questions, anxiousness over how it will impact businesses and public commentary. As of now, Biden’s announcement raises more questions than answers. In short, the requirements and guidance will be forthcoming in the weeks ahead, so many details are yet unknown.
The following is what is known today, and when to anticipate the release of key guidance regarding applicability, requirements and enforcement, as well as three steps employers can take while awaiting further clarification.
Key components of the Path Out of the Pandemic plan
The Plan outlines six goals achieved through five action items that will apply to four employer populations:
- Private employers with more than 100 employees
- Certain federal contractor employers
- Federal employers
- Health care employers
In addition to vaccine mandates, the Plan also includes additional benefits and protocols, including requirements for large entertainment venues to screen patrons for vaccine status upon entry and additional federal financial assistance for businesses.
Private sector employers with more than 100 employees
Biden stated that the U.S. Department of Labor’s Occupational and Health Administration (OSHA) will require all employers with more than 100 employees to:
- Ensure their workers are vaccinated or tested weekly
- Provide paid time off for the time workers take off to get vaccinated or to recover from any side effects from the vaccination
Biden announced that covered employers will be required to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA is currently developing the official rule. The rule will be in the form of an Emergency Temporary Standard (ETS); however, there is no official deadline for publishing the ETS. Reports have surfaced that the ETS will be published in the coming weeks.
Federal contractor employers
Biden signed an Executive Order (Contractor Order) that requires certain executive departments and agencies to ensure certain contracts and contract-like instruments include a clause that contractors and subcontractors comply with all guidance published by the Safer Federal Workforce Task Force (Task Force). The Contractor Order will only apply to certain new contracts and contract-like instruments, new solicitation of contracts and contract-like instruments, extensions or renewals of existing contracts or contract-like instruments, and exercises of options of existing contract and contract-like instruments entered on or after Oct. 15, 2021. Under the Contactor Order, the Task Force must issue guidance, define relevant terms, explain protocols and identify any exceptions by Sept. 24, 2021.
On Sep. 10, 2021, the Deputy Director for Management, Office of Management and Budget issued a statement summarizing the Contractor Order and previewing that covered contractors and subcontractors will be required to follow the following protocols:
- Vaccination of covered federal contractor employees
- Compliance by covered contractor employees with the Task Force’s requirements related to masking and physical distancing while in covered worksites
- Designation by contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered worksites
Importantly, the Contractor Order lists specific exceptions, including, but not limited to, grants and contracts and contract-like instruments or agreements with Indian Tribes under the Indian Self Determination and Education Assistance Act, as amended.
Biden also signed an Executive Order (Employee Order) that requires all federal agencies to implement “a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” The Task Force is required to issue guidance on or before Sept. 16, 2021, regarding agency implementation of the Employee Order’s requirement.
Health care employers
Biden is requiring vaccinations for health care workers in most health care settings that receive Medicare or Medicaid reimbursement, including, but not limited to, hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. Most recently the Centers for Medicare & Medicaid Services (CMS) required vaccination for nursing home workers. CMS is currently developing an Interim Final Rule with Comment Period that will be issued in October to extend the mandate to health care workers. CMS is encouraging health care employers to begin implementing a vaccine mandate in anticipation of the Interim Final Rule being released.
More questions than answers for private employers and federal contractors
Biden did not provide the details related to the implementation and enforcement of the ETS or the guidance to be issued by the Task Force. The following are just a few of the initial questions that will need to be answered:
- Which employers are covered: How are employers to count employees to determine if they are covered by the ETS? Is it current numbers or average numbers, and are contract and seasonal employees included? Are related entities, each with fewer than 100 employees, going to be considered one entity for coverage purposes?
- Subsidies: Will there be subsidies available to employers to cover the cost of paid time off for vaccinations and/or weekly testing, and side effects of the vaccine?
- Recordkeeping: Will the standard include mandates on how to administer and record the new vaccination program and/or weekly testing, and if so, how onerous will the administration of the program be for employers?
- Timeline for compliance: How long will employers have to comply with the ETS?
- Enforcement: What are the consequences of non-compliance with the ETS?
- State law interplay: How does the ETS impact state vaccination limitations?
- Workers’ compensation: If an employee has an adverse reaction to the vaccine, will it be considered a work-related injury even though the federal government is mandating vaccinations and/or testing (and not the employer per se)?
While the Deputy Director’s statement provides a preview of the guidance that may be issued for federal contractors and subcontractors by the Task Force, it is important to await the written details of the guidance to assess applicability, compliance requirements, consequences of non-compliance and exceptions.
Key takeaways: 3 steps to prepare for the vaccine mandate
Federal contractors and private employers that may be subject to the new mandates can take these three steps proactively:
- Don’t panic: Until guidance and rules are released and approved, it is premature to begin implementing changes to protocols and policies. Further, court challenges are likely which may impact the implementation dates.
- Be proactive with employees: Send out a communication to employees that lets them know “we’re on it.” Consider stating the business’s awareness of the announcement and that leadership is awaiting details. Let employees know the business is monitoring developments closely and will provide additional guidance in the weeks to come. In the meantime, remind employees of their obligations to follow existing safety protocols and procedures.
- Be prepared: Begin collecting potentially relevant information. For example, collect staffing numbers (including seasonal and temporary) employees. If the business hasn’t done so yet, consider surveying the employee population on vaccination status, particularly if the business is a health care provider. Employers should also consider who will be responsible for receiving testing results and vaccination status. It is also important to identify current capabilities for collecting and protecting data regarding vaccine status and test results, and be aware of obligations to protect such information from disclosure consistent with federal and state laws.
Be prepared for the vaccine mandate
Potentially covered employers may consider developing a plan to address potential staffing shortages should employees resign rather than become vaccinated or agree to weekly testing. Employers are also well-advised to talk to risk management to assess workers’ compensation and general liability coverage for vaccine side effects. Finally, you may consider collecting information about possible vendors for testing, if you will provide that option to employees. President Biden announced a partnership with three large retailers to provide at-home rapid tests at cost for the next three months to make the tests more widely available and easier to use.
For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice Group.