In an effort to continue to fight COVID-19 and the Delta Variant and curb the chances of death or hospitalizations, on September 9, 2021, President Biden announced a new national strategic plan, the Path Out of the Pandemic (the “Plan”). The Plan aims to keep schools open and safe and to protect the economy from lockdowns and damage.
A key part of the Plan is vaccinating the unvaccinated. The Plan directs the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring businesses with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated employees to provide a negative COVID-19 test on a weekly basis.
In addition, such employers will be required to provide employees with paid time off for the time it takes for workers to get vaccinated or to recover from post-vaccination side effects. This requirement will be implemented through the ETS and will impact over 80 million workers in private sector businesses with 100+ employees.
Additionally, as part of this Plan, President Biden issued two Executive Orders impacting federal agencies and federal contractors. The first Executive Order directs federal agencies to implement programs requiring vaccination of all federal employees in accordance with guidance to be issued by the Safer Federal Workforce Task Force within seven days of the Executive Order. Federal employees should be afforded a period of time for compliance with vaccination requirements. Federal employees will not have the option to test weekly in lieu of receiving the vaccine.
A separate Executive Order mandates federal agencies to include a clause in certain federal contracts requiring contractors and their sub-tier subcontractors to be vaccinated for COVID-19 and to comply with all guidance issued by the Task Force, insofar as it may be applicable to contractors and subcontractors. The Executive Order takes effect immediately and is applicable to: any new contract; new contract-like instruments; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument. The specific federal contracts covered by the Executive Order are:
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A procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
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A contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701, et seq.;
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A contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and
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A contract or contract-like instrument with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.
The Executive Order does not apply to:
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Grants;
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Contracts, contract-like instruments, or agreements with Indian Tribes;
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Contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation;
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Employees who perform work outside the United States or its outlying areas; or
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Subcontracts solely for the provision of products.
Similar to Federal employees, contractors will not have the option to test weekly in lieu of vaccinations.
Additionally, the Plan will require COVID-19 vaccinations for 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.
This mandate is likely to face, and is already facing, significant legal challenges. Moreover, with respect to the private employer mandate, there are numerous unanswered questions including, but not limited to:
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How will the 100-employee threshold be counted?
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Will employers be required to collect proof of vaccination?
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What is sufficient proof – a self-attestation of vaccination or the vaccination card?
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What type of testing will be required?
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Who will pay for the testing?
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Will remote employees be covered?
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Will independent contractors be covered?
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If employees refuse to provide proof of vaccination or proof of a negative test, can they be terminated?
Notwithstanding these unanswered questions, employers can take proactive steps, such as the following:
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Determining whether the employer has employees who will be covered under the mandates;
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Deciding whether to follow the guidance even if the employer has less than 100 employees;
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Determining whether the employer will require all employees to be vaccinated or will permit unvaccinated employees to test weekly;
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Drafting and implementing vaccination policies by consulting with counsel and relevant stakeholders;
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Reviewing and revising vaccination policies that are already in place;
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Creating and implementing procedures to determine the vaccination status of employees;
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Maintaining confidential records regarding employee vaccination status; and
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Creating a plan and a process for handling requests for accommodation based on religion or disability.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
