On Thursday, September 9, 2021, President Biden announced a new comprehensive national strategy to combat the spread of COVID-19 and its variants. According to the President’s announcement, this strategy will be implemented through a combination of Executive Orders and federal rules and will establish a set of vaccine mandates affecting tens of millions of U.S. workers. Groups affected include large employers with 100 or more employees, health care employers, federal employees, and federal contractors. This announcement and its impact on employers has been widely reported—and widely speculated upon. Many reports discuss the vaccine requirements, particularly the requirement for employers with 100 or more employees, as if they are currently in effect and must be followed by employers, which is not accurate. It is important for employers to understand the parameters and status of the core initiatives impacting employers and know what to expect in the weeks to come from the task forces and federal agencies tasked with developing the rules and guidelines to implement the President’s plan.
Although we await the issuance of critical details regarding the terms of the new rules, we have summarized the Biden administration’s proposals affecting employers below based on currently-available information.
1. Employers with 100 or More Employees: OSHA rule requiring employers with 100 or more employees to ensure workers are vaccinated or tested weekly and to pay for vaccination and recovery time.
The President instructed the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop an Emergency Temporary Standard (“ETS”) that will require all covered employers with 100 or more total employees across all work sites to require that their workforce is either fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis. The Biden administration emphasized its commitment to expanded testing availability at low or no cost as part of this plan. According to President Biden, the ETS will require covered employers to provide paid time off for employees to receive the vaccine and/or to recover from any side effects from vaccination. The ETS is anticipated to impact over 80 million workers in the private sector.
When OSHA will issue this ETS, the full parameters of the ETS, and whether it will become effective remains to be seen. The Acting Assistant Director of OSHA stated in a September 10th briefing that OSHA will issue the ETS “in the coming weeks,” but could not say how many weeks. In any event, we anticipate legal challenges to any ETS OSHA issues. Those challenges will focus primarily on whether OSHA has the authority to issue the ETS and whether it is constitutional. OSHA is authorized to issue an ETS when: (1) it is determined that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards; and (2) the emergency standard is necessary to protect employees from such danger. An ETS may be in effect for up to six months, after which OSHA must issue a permanent standard.
We did receive some small insights into the content of the forthcoming ETS in the OSHA briefing. The Acting Assistant Director noted that fully remote employees who do not report to a work site or interact with others will not be subject to the rule. In addition, we can expect clarification in the ETS on who will be required to pay for testing and details on the verification process for vaccinations.
2. Health Care Employers: CMS regulation covering health care workers at Medicare and Medicaid participating facilities and other CMS-regulated settings.
President Biden also announced that the Centers for Medicare & Medicaid Services (“CMS”) will require COVID-19 vaccinations for employees in “most health care settings that receive Medicare or Medicaid reimbursement.” The actions taken by CMS will build upon the vaccination requirements CMS previously announced for nursing home facilities and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. With the goal of creating a consistent standard across the country while giving patients assurance of the vaccination status of those delivering care, the Biden administration estimates that these requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. We await additional information from CMS on the details of its forthcoming regulations. To the extent an employer is a potentially covered health care setting, no specific action is required at this time under federal law (although many state orders address vaccinations and/or testing for health care workers).
3. Federal Workers and Certain Federal Contractors: Biden’s Executive Orders requiring vaccinations for all federal workers and certain federal contractors.
Expanding on the Biden administration’s July announcement regarding safety requirements for unvaccinated federal workers, the President is now requiring that all federal executive branch employees and many federal contractor employees receive the COVID-19 vaccine. The Safer Federal Workforce Task Force (“Task Force”) was directed to issue further guidance on the implementation of these new requirements by September 24, 2021 for federal contractors and by September 16, 2021 for federal employees. At present, the Executive Orders as to federal employees and contractors do not include a testing alternative. Importantly, as it relates to federal contractors, the Executive Oder only mandates vaccines when a federal contractor has covered contracts (or contract-like instruments) to provide services that are entered into, extended, or renewed on or after October 15, 2021. In other words, federal contractors are not obligated to take any immediate action under the Executive Order.
Many questions remain unanswered by the President’s September 9th announcement and Executive Orders. For now, we await guidance from the Biden administration and the relevant federal agencies to aid in clarification of the terms of these new requirements and what they mean for employers.
In the meantime, employers should determine whether they are likely to be impacted by this set of announcements, particularly those related to federal contractors and health care, and, if so, consider whether steps should be taken now to prepare to implement policies and practices in compliance with the forthcoming rules and guidelines. Ice Miller will continue to monitor this situation closely and will provide relevant updates as new information becomes available.