On September 13, 2021, Martin Pringle Employment Law Attorneys, Ashlyn Lindskog, Terry Mann and Michelle Moe Witte presented a live webinar event to discuss President Biden’s COVID-19 Action Plan, including vaccine mandates, testing requirements, government contractors and general guidance for employers. They discussed what we know, what we don’t know and what we anticipate the looming questions to be for employers. Thanks to everyone who attended and engaged - there were some terrific questions!
The specifics available to us currently about the vaccine requirements are limited as we await the language of standard and other guidance implementing the President's executive order.
On September 9, 2021, as part of President Biden’s new COVID-19 Action Plan, the White House announced that the U.S. Occupational Safety and Health Administration (OSHA) had been directed to develop and implement a new emergency temporary standard (ETS) mandating private employers with more than 100 employees to require that their employees are either fully vaccinated or subject to COVID-19 testing at least once per week. Also as part of the Action Plan, President Biden issued an Executive Order adding COVID-19 vaccination requirements affecting nearly all federal contractors. Finally, the Action Plan includes direction to 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.
These three vaccine mandates operate under three different procedures. The 100+ employee requirement for private employers will await OHSA to issue the ETS, the timeline of which is currently unknown. The President has already issued an Executive Order regarding the federal contractor requirement and OMB will promulgate specific guidance by September 24, 2021. And the Centers for Medicare & Medicaid Services (CMS) will provide the express requirements for healthcare providers.
For Private Employers of 100+ Employees
The ETS allows OSHA to enact regulations it can enforce immediately if a “grave danger” to worker safety is present. Covered employers who ignore the ETS could face OSHA citations and penalties of up to $14,000 per violation. It is not yet clear whether these penalties are per employer, per location, per day, etc. Businesses will be required to give workers paid time off to get vaccinated and to recover from any vaccine side effects as part of the forthcoming emergency rule
It is not yet known whether employers will be required to pay for testing and provide paid leave for testing, though placing this burden on the employee, rather than the employer, would align with the administration’s desire to incentivize individuals to get vaccinated (or disincentivize them to remain unvaccinated).
By law, the ETS can remain in place for six months. After that time, if the requirements are to remain in place, the ETS must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period.
President Biden has already issued a new Executive Order requiring vaccinations of federal contractor’s employees. Most federal contractors will soon be required to follow new vaccine mandate requirements, effective with contracts with pending solicitations or entered into on or after October 15. Federal contractors are those with any contract or contract-like relationship for goods, services, concessions, leases, or anything connected to federal property or lands offering services for federal employees, dependents, or the general public, worth $250,000 or more. This does NOT include grants or Indian Tribes contracts. The executive order does require that all applicable contracts shall include a flow-down clause to incorporate the safety protocol requirements in lower-tier subcontracts, which would impact employers which aren’t themselves federal contractors but which are subcontractors for a federal contractor (except if the subcontract is only for provision of products).
The vaccine mandate for federal contractors will not go into effect immediately. By September 24, the Safer Federal Workforce Task Force must provide definitions of relevant terms, explanations of compliance protocols, and any exceptions that apply. This information and additional task force guidance must be approved by the director of Office of Management and Budget (OMB), at which time contractors and subcontractors working on or in connection with a federal government contract or contract-like instrument must adhere to the published guidance.
Health Care Settings
The administration’s directives to CMS regarding vaccination in health care facilities builds on the vaccination requirement for nursing facilities recently announced by CMS. The new requirements will apply to nursing home staff as well as staff in hospitals and 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. The requirement will include clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care, covering a majority of health care workers across the country.
What We Don’t Yet Know
The short answer to that question is a lot. We can speculate in certain areas based on the language included in the COVID-19 Action Plan, in the Executive Order regarding federal contractors, and in previous COVID-19 mitigation efforts out of Washington but we won’t know for sure until these new provisions are developed and sent out. Stay tuned to this space for updates as the various requirements and guidance are rolled out.