Biden's Path Out of the Pandemic: Employers Aren't Out of the Woods Yet
Late last week, President Biden released his updated “Path Out of the Pandemic” plan, which mandates COVID-19 vaccinations for certain employees of covered federal government contractors/subcontractors, Medicare/Medicaid-participating healthcare employers, and federal agencies. The plan also requires the U.S. Occupational Safety and Health Administration (OSHA) to develop a rule requiring employees of all employers with 100 or more workers to be vaccinated or provide a negative COVID-19 test result on at least a weekly basis before coming to work. Although the mandates are not yet in effect, employers can begin to prepare by familiarizing themselves with the new requirements, considering how their businesses might be affected, and planning next steps.
Employers with 100 or More Employees: Vaccination Requirement or Negative Test Result In lieu of Vaccination
President Biden’s Path Out of the Pandemic plan states that OSHA is developing an emergency rule to require all employers with 100 or more employees to (1) require their employees to be fully vaccinated or provide a negative COVID-19 test result at least once per week before coming to work; and (2) provide paid time off for employees to get vaccinated or recover from post-vaccination side effects.
Although the federal government has not yet announced when OSHA might issue the emergency temporary standard for employers with 100 or more employees, it is expected to occur in the coming weeks.
Certain Federal Contractors & Subcontractors: Vaccination Requirement
As part of the “Path Out of the Pandemic” plan, President Biden also issued a new Executive Order that requires some—but not all—federal government contractors and subcontractors to comply with the Safer Federal Workforce Task Force Guidance, which Guidance is to be issued by September 24, 2021. It is expected that all employees working on or in connection with a covered federal government contract/subcontract will be required to receive the COVID-19 vaccination. Unlike the OSHA rule for employers with 100+ employees, the Order does not allow covered employees to provide a negative COVID-19 test result on a weekly basis in lieu of receiving the vaccination.
Generally, the Order covers contracts (or contract-like instruments) that exceed the current simplified acquisition threshold of $250,000, and which are entered into, extended, renewed, or under which an option is exercised, on or after October 15, 2021, for any of the following:
- the procurement of services, construction, or a leasehold interest in real property;
- services covered by the Service Contract Act;
- concessions; and
- services offered to federal employees, their dependents, and the general public in connection with federal property or lands.
“Subcontractors (at any tier)” to executive-agency contracts for services, construction, or a leasehold interest in real property are also covered.
The Order does not cover:
- contracts or contract-like instruments with Indian Tribes;
- contracts with a value equal to or less than the FAR simplified acquisition threshold of $250,000;
- agreements involving employees performing work outside the U.S.; and
- subcontracts solely for the provision of products.
Further, it appears that the Order does not apply to federal contractors/subcontractors with manufacturing contracts (Walsh-Healey Act contracts) or financial institutions that serve as a depository of federal funds.
Although the Order is effective immediately, its requirements (and the requirements of future Guidance to be issued under the Order) will apply to contracts or contract-like instruments entered into, extended, renewed, or under which an option is exercised, on or after October 15, 2021. The Order states that federal contractors with existing contracts or pending solicitations are “strongly encouraged, to the extent permitted by law” to follow the new rules.
It appears that only certain employees—those working on/in connection with a covered contract—may be subject to the Order’s vaccine mandate, as the Order does not appear to necessarily cover all employees of covered federal contractors/subcontractors. However, if a contractor has 100+ employees, it appears that those employees not covered by the Order would still be subject to the OSHA rule requiring them to get the COVID-19 vaccination or provide a negative COVID-19 test result on at least a weekly basis.
Health Care Workers at Medicare and Medicaid-Participating Hospitals and Other Facilities: Vaccination Requirement
In addition, the Centers for Medicare & Medicaid Services will require COVID-19 vaccinations for employees in most health care settings that receive federal Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The requirement is expected to cover nursing home and hospital staff, as well as 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.
Many Questions for Employers Remain
In light of the new rules, employers will need to consider many issues, with a tailored approach for each employer that depends on numerous factors, including employer location and industry. Such issues and unanswered questions include:
- handling employee requests for exemptions for protected legal activities or characteristics (such as religious and/or medical accommodations);
- whether there will be other exceptions to the vaccine/testing requirements, and how employers should address such exceptions;
- whether employers can ask job applicants if they have been vaccinated and/or if they are willing to be tested frequently;
- whether employers must pay for the cost of vaccination, to the extent the cost is not otherwise covered by group health insurance or the government;
- whether employers must pay for time spent by employees to be vaccinated or tested;
- whether employers will pay employees who become ill as a side effect of the vaccine;
- what process should employers use to ensure compliance by both employees and non-employees who want to enter company property—including customers, clients, vendors, and suppliers—and whether businesses can require temporary employees and employees of third parties to provide proof of compliance;
- what records must employers maintain to prove compliance, including issues related to confidentiality of personnel records; and
- what should employers do now before the new rules go into effect.
Although some employers will welcome the new requirements, the rules will pose numerous challenges for others. Please contact our Firm if you want to discuss this further.