Labor & Employment News Alert

UPDATED Biden's Vaccine/Testing Mandates: What Does This Mean for Employers?

September 14, 2021

By: Laura Hoffman Lorensen

On September 9, 2021, President Joe Biden issued a comprehensive, national strategy called the Path Out of the Pandemic: President Biden’s COVID-19 Action Plan to combat the COVID-19 pandemic more aggressively.  The Plan outlines a six-pronged approach to increase incentives and requirements to get vaccinated.  Portions of the Plan will soon require all employees working for large private entities to be vaccinated against COVID-19 or undergo weekly testing for the virus.  The Plan will also require vaccination for certain employees working for the federal government and federal contractors as well as most healthcare workers. 

For the private sector, the Plan directs the Department of Labor’s Occupational Safety and Healthcare Administration (“OSHA”) to develop an Emergency Temporary Standard (“ETS”) that will require all employers with at least 100 employees to ensure their workers are fully vaccinated or, alternatively, require them to produce a negative test result at least once a week before coming to work.  The ETS will likely require covered employers to provide employees with paid time off to get tested or vaccinated and recover from any side effects.  It is unclear, however, whether employers will also be required to pay the costs of testing.  EEOC guidance that predates the pandemic suggests that the Americans with Disabilities Act requires employers to pay all costs associated with mandatory medical testing.  However, it appears the purpose of Biden’s testing alternative is to incentivize employees to get vaccinated.  OSHA, therefore, could place the costs on employees.

Covered employers who ignore the ETS could face OSHA citations and penalties of up to $13,600 per violation.  Though the Biden administration did not set a deadline for OSHA to issue the ETS, it is likely to issue it within the next few weeks.  Until that time, many questions will remain unanswered, including how the 100-employee threshold will be counted, whether the rule will apply to remote workers, what kind of testing will be required, and who will be required to pay for testing.  

As for the government, President Biden signed two executive orders, effective immediately, that mandate vaccination for all executive branch employees and for employees of certain contractors that do business with the federal government.  Importantly, congressional and judicial staff fall outside this scope.  In addition to all executive branch employees, the new rules will apply to any new contract or new contract-like instrument, including a new solicitation, extension, or renewal or exercise of an option, provided it is:

1. a procurement contract for services, construction, or a leasehold in real property;
2. a contract covered by the Service Contract Act (“SCA”);
3. a contract for concessions, including concessions excluded generally under the SCA; or
4. a contract with the federal government in connection with federal property or lands and related to offering services for federal employees, dependents, or the general public.

Contracts not covered include:

1. grants;
2. Indian Tribes contracts or contract-like instruments;
3. those with a value equal to or less than the simplified acquisition threshold as defined under the Federal Acquisition Regulation;
4. agreements involving employees performing work outside the U.S.; and
5. subcontracts solely for the provision of products.

Unlike the private sector, covered federal employees and contractors cannot opt for weekly testing instead of vaccination.  The executive order suggests that limited exceptions will be made for those who refuse to be vaccinated due to a qualifying disability or sincerely held religious belief.  Workers who do not qualify for such exemptions will be subject to a 75-day “ramp-up” period in which they must become fully vaccinated.  The Biden administration has expressed that federal workers who fail to comply with the vaccine mandate will go through the standard HR process, which may include counseling and disciplinary action.  On September 24, 2021, the Safer Federal Workforce Task Force will issue further guidance, defining terms and protocols necessary for compliance.

Finally, the Plan provides that the Centers for Medicare and Medicaid Services will begin requiring vaccination for employees in most healthcare settings that receive Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, as a condition for continued federal funding.  The administration had previously imposed this condition on nursing homes only.  The new requirement will likely apply to approximately 50,000 providers.

While awaiting further guidance, employers should start preparing by, first, considering whether these rules apply to their workforce.  If so, adopt procedures for determining employees’ vaccination status and develop a plan for handling accommodation requests.  If a private employer with at least 100 employees, determine whether you will mandate the vaccine or allow weekly testing.  Finally, effected employers should develop a COVID-19 policy, which can be supplemented once further guidance is issued, and communicate it to your employees.