President Biden is enlisting the help of the country’s largest employers to help curb the spread of the COVID-19 pandemic and the looming threat of the Delta Variant by requiring the vaccination of America’s workforce. On Thursday, September 9, 2021, the President announced he directed the Department of Labor’s Occupational Safety and Health Administration ("OSHA") to develop a rule requiring companies of 100 or more employees to require their workers be vaccinated or supply a negative COVID-19 test result each week before returning to in-person work. The measure will be authorized under the Emergency Temporary Standard Code which authorizes the agency to regulate hazardous threats to public health. The new rule is part of a six-part plan to combat the coronavirus and will affect approximately two thirds of America’s workforce when it goes into effect.
Paid Time Off Requirement & Proof of Vaccination
The President emphasized that employers must be prepared to give their workers paid time off for those seeking weekly testing in lieu of vaccination. This will likely include paying for employee travel time to and from the testing location. It will also include paid time off for employees who feel under-the-weather and experience symptoms post-vaccination.
Employers may decide to consider providing mobile at-home rapid testing kits as a more convenient and cost effective option for employees who do not wish to be vaccinated and work at home. The President announced that home test kits will be sold at cost from major retailers in the next three months such as Walmart, Amazon, or Kroger. Alternatively, free pharmacy testing close to the office or an employee’s home may prove to be a more cost effective strategy.
Currently, two doses of the Pfizer or Moderna vaccines and one dose of the Johnson & Johnson vaccine will be sufficient for vaccination. At this time, it is unclear how employees will be required to demonstrate proof of vaccination as there has yet to be a universal system established. Employers are urged to look to their state and local guidelines, if any, for proof of vaccination requirements.
Tightening Restrictions on Federal Workers and Contractors
Additionally, all federal workers and contractors who do business with the federal government must be vaccinated subject to limited exceptions for religious or medical reasons. The new executive order strengthens the President’s previous executive order, issued on July 29, 2021, by extending the vaccine mandate to federal contractors and eliminating a testing option in lieu of vaccination. Federal employees must be vaccinated within 75 days or face disciplinary action that could include termination. It will be clearer in the coming days what consequences a worker would face for not complying with the new vaccine mandate. Under the current federal disciplinary system a federal employee could face warnings, counseling, temporary suspension, or termination for policy violations.
Finally, President Biden expanded the requirement that most healthcare workers be vaccinated under the new mandatory requirements put forth by the Centers for Medicare & Medicaid Services ("CMS"). Healthcare facilities that receive Medicare or Medicaid reimbursement such as home health agencies, hospitals, ambulatory surgical centers, and dialysis facilities will face mandatory vaccination requirements according to the White House. These requirements not only apply to nursing home clinical staff, as previously announced, but also to volunteers, staff who are not directly involved with patient or resident care, and those providing services to CMS-regulated facilities.
Preparing for the New Vaccine Mandates
Employers preparing for the new mandates are advised to check with their local county and state health authorities for further guidance as local and state governments may add additional requirements to those announced by the federal government. Before employers undergo any major expenses to prepare for implementation of the new rules, they are advised to contact their employment counsel as the regulations are constantly evolving. Vaccine mandates are highly controversial and many employers and possibly some states are already gearing up to fight the President’s mandates citing federal overreach and civil liberty violations.