September 14, 2021

On September 9, 2021, President Biden announced his six-pronged Path Out of the Pandemic COVID-19 Action Plan containing vaccination and testing requirements applicable to most federal, private, and healthcare employers. The Plan directs the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) to provide further details on the new requirements. Meanwhile, an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors directs the Federal Workforce Task Force (“Task Force”) to issue guidance outlining requirements for federal contractors.  In addition, the Plan directs the Centers for Medicare & Medicare Services (“CMS”) to expand its emergency rule requiring nursing homes to implement mandatory employee vaccinations to include all health care facilities that receive Medicare and Medicaid reimbursements.

Employers of 100 or More Employees Will be Required to Ensure Vaccination or Testing

President Biden directed OSHA to create a rule for private employers of 100 or more employees to require all employees to be fully vaccinated against COVID-19 or, alternatively, to undergo testing on at least a weekly basis. These employers with 100 or more employees will also be required to offer paid leave to employees to cover the time necessary to get vaccinated and recover from any adverse vaccine-related side effects. Once these new requirements take effect, employers may face fines of up to $14,000 per violation for each failure to comply.

In the coming weeks, it is expected that OSHA will provide additional information concerning this proposed rule, including when the rule and its enforcement will begin.  Until the proposed rule is released, however, many details remain unclear.  For example, it is uncertain how the new vaccination-related paid leave will be administered or how employers will be expected to go about confirming that their employees are fully vaccinated.

Executive Orders Mandate Vaccination for both Executive Branch Employees and Federal Contractors

The Executive Orders require employees of the executive branch of the federal government and certain employees of federal contractors to be vaccinated, but without a weekly testing option unless the employees receive an approved exemption.  The Biden administration has announced that unvaccinated federal employees will have about 75 days to get vaccinated.

Federal contractors will need to include a contractual clause in their federal contracts requiring compliance with the pandemic protocols to be issued by the Task Force. The Executive Order gives the Task Force until September 24, 2021 to issue further written guidance for federal contractors in order to further explain the requirements involving federal contractors as well as any exceptions.  By October 15, 2021, the new clause implementing the requirements of the Executive Order and the Task Force guidance must be inserted into covered contracts that are issued, extended or renewed on or after such date.

Expanded CMS Rule Will Mandate Vaccination for Most Healthcare Employees

Finally, the Biden Administration will mandate COVID-19 vaccination of all staff within Medicare and Medicaid participating facilities as a condition for continued federal funding. Specifically, existing emergency regulations requiring vaccinations for nursing home workers will be expanded to include all health care facilities certified to participate in the Medicare and Medicaid programs, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.  This mandate will apply to staff who are not involved in direct patient care, including clerical staff.  CMS has indicated that the interim final rule implementing this vaccine mandate will be issued in October.

Next Steps

Although more details will be forthcoming, employers directly impacted by these requirements should start planning for the COVID-19 vaccination and testing policies and procedures they will need to implement or revise in order to ensure compliance and avoid any potential business disruptions or penalties.   Employers will need to effectively navigate both the legal and practical issues of vaccine mandates, including obtaining and tracking vaccination status, testing policies, reasonable accommodations for disabilities and sincerely held religious beliefs, wage and hour compliance, confidentiality issues, and bargaining with their employee representatives of any unionized workforce.  And, beyond mere compliance, employers implementing vaccination mandates and associated policies should develop a communications plan designed to encourage employee participation and mitigate any negative impacts on morale.

Guidance on this topic is rapidly evolving.  If you have questions about how to ensure your policies comply with these new mandates, please contact your Walter | Haverfield attorney.

Shannon Byrne is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at sbyrne@walterhav.com or at 216-928-2909.