On September 10, 2021, President Joe Biden announced a six-part plan to address the COVID-19 pandemic and increase the number of vaccinated Americans. Employers already facing compliance challenges arising from disparate federal, state and local requirements aimed at combating COVID-19 now face additional vaccination and alternative testing requirements.

On September 10, 2021, President Joe Biden announced a six-part plan to address the COVID-19 pandemic and increase the number of vaccinated Americans. Employers already facing compliance challenges arising from disparate federal, state and local requirements aimed at combating COVID-19 now face additional vaccination and alternative testing requirements. This alert provides an overview of the Executive Orders that were issued and sets forth a number of questions that we expect will be addressed by OSHA as they implement their Emergency Temporary Standard.

Specifically, as part of his Path out of the Pandemic plan, President Biden announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing an Emergency Temporary Standard (ETS) addressing COVID-19 vaccination requirements.

Separately, President Biden issued two Executive Orders (EO) – one requiring COVID-19 vaccinations for federal employees and another requiring enhanced COVID-19 safety protocols for federal contractors. Key requirements resulting from these developments include:

  • All private employers with 100 or more employees to ensure their workers are vaccinated or tested weekly
  • Vaccinations are required for healthcare workers at Medicare- and Medicaid-participating hospitals and other healthcare settings
  • Employers to provide paid time off to employees to get vaccinated
  • Large entertainment venues called on to require proof of vaccination or testing for entry
  • Vaccinations for all federal workers and
  • COVID-19 safety protocols for federal contractors.

Below, we discuss what we know so far about requirements for private employers and federal contractors. We are also monitoring the Biden Administration’s actions related to these requirements, including OSHA’s publication of the ETS and related guidance, and will provide further updates as more information becomes available.

I. The OSHA Emergency Temporary Standard

President Biden’s plan requires all private employers with 100 or more employees 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 expected to issue its ETS in the coming weeks. In the meantime, there are numerous open questions, for example:

  • How is the “100-employee” threshold determined? For example, will it include only full-time employees, or also contractors, part-time, temporary and/or leased employees? Will it be measured by worksite or across the entire organization? When should the employee count be determined?
  • How long will covered employers have to come into compliance?
  • Are employers required to offer the “weekly test” option to all employees as an alternative to mandatory vaccination or may employers offer this option only to employees entitled to receive a reasonable accommodation for medical or religious reasons, consistent with existing federal (EEOC) guidance?
  • Is testing required for all unvaccinated employees (including those working remotely) or just those who plan to be onsite?
  • What are the testing requirements (eg, type of test used, onsite v. offsite testing, required documentation and recordkeeping)?
  • Who is responsible for the costs of testing (eg, testing costs, time spent testing)? Will there be a federal subsidy/tax credit for testing?
  • What form of proof of vaccination will be required?
  • What are the consequences if an individual falsifies their vaccination status?
  • How does this requirement apply to employers with collective bargaining obligations and agreements?
  • What are the requirements for paid leave for vaccination? Will they be similar to those implemented under the FFCRA?
  • Will the new federal requirements preempt state and local requirements?

While there are many unknowns with respect to the ETS, there is one certainty: the ETS will be subject to legal challenges. Indeed, several states and organizations have already announced their intent to fight implementation of the ETS.

II. The Executive Orders address federal workers and federal contractors

In addition to the OSHA ETS, President Biden also addressed COVID-19 protocols for the federal executive branch workforce and federal contractors through two separately issued EOs. The first EO, entitled “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” requires that all federal executive branch workers be vaccinated, with minimal exceptions. The second EO, entitled “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” requires federal contractors to provide adequate COVID-19 safeguards to all workers performing at specific location(s) in which one or more employees are working on or in connection with a federal government contract or contract-like instrument.

According to President Biden, the purpose of his EO addressing federal contractors is to protect the parties that contract with the federal government from COVID-19 exposure, which will ultimately promote efficiency in government contracting by decreasing worker absence and reducing labor costs.

Unlike the EO addressing federal employees, which specifically mandates vaccinations for the federal workforce, the EO applying to federal contractors does not yet define which protections must be in place, but, rather, notes that contractors and subcontractors shall, for certain contracts and contract-like instruments, new solicitations, extensions or renewals, and exercise of options entered into on or after October 15, 2021, comply with all guidance published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance). Based on President Biden’s plan, it is expected that this guidance will include mandatory vaccination requirements.

Pursuant to the EO, the Safer Federal Workforce Task Force (Task Force) is required to issue this guidance, including definitions of relevant terms, explanations of protocols required to comply with workplace safety guidance, and any exceptions thereto, no later than September 24, 2021. The Federal Acquisition Regulatory Council must further amend the Federal Acquisition Regulation (FAR) to prescribe a clause consistent with this EO for inclusion in federal procurement solicitations and contracts by October 8, 2021. For agencies not subject to the FAR, agency heads must similarly take steps to ensure its contracts and contract-like instruments include a clause with the same effect.

The resulting clauses will apply to Federal Acquisition Regulation (FAR) and non-FAR based agency contracts alike, including all Executive departments and agencies, as well as independent establishments in the Executive branch of the government, and establishments of the legislative or judicial branches of the government. It does not, however, apply to establishments of the Senate or the House of Representatives, any activities under the direction of the Architect of the Capitol, or wholly owned government corporations.

Further, while this EO is applicable to a broad array of contracts and contract-like instruments, such as lease agreements, cooperative agreements, intergovernmental service agreements, letter contracts, and bi-lateral modifications, it is important to keep in mind that it does not apply to grants, contracts or agreements with Indian Tribes, contracts and subcontracts under the simplified acquisition threshold, subcontracts solely for the provision of products, or to employees who perform work outside the United States.

Contractors should take note of these limitations and be prepared to work with counter parties – whether it be the government or a prime contractor – to ensure applicable clauses are only included in the resulting contract if necessary. This means taking into account the dollar value of the contract, type of contract instrument, and contract product(s) or service(s) offered – particularly as a subcontractor.

Additionally, note that while this EO is applicable to contracts, contract-like instruments, and solicitations entered into on or after October 15, 2021, this does not prevent agencies from ensuring safety protocols are in effect for existing contracts, contract-like instruments, or solicitations issued between the date of the EO and October 15th. Indeed, the EO stresses that agencies are strongly encouraged to ensure, to the fullest extent of the law, that the safety protocols required under those contracts and contract-like instruments are consistent with the requirements specified in the EO to provide adequate COVID-19 safeguards for all contractor personnel.