President Biden has announced plans to reduce the number of unvaccinated Americans by using regulatory and other powers to increase the number of Americans covered by vaccination requirements as COVID-19 cases continue to climb. Biden's plan includes five key parts, outlined below, which are likely to take effect over the next several weeks, absent legal challenges:
1. Requiring Vaccinations for all Federal Workers and Contractors
On September 9, 2021, President Biden signed an Executive Order that requires all federal workers to be vaccinated. President Biden also signed an Executive Order that requires all employees of contractors that do business with the federal government to be vaccinated. Notably, these executive orders do not include an option to be regularly tested for COVID-19 in lieu of receiving the vaccine. Federal workers will have approximately 75 days to secure vaccination or risk losing their jobs.
2. Requiring Vaccinations for Private Employers with 100+ Employees or Weekly Testing
The President has instructed the Department of Labor's Occupational Safety and Health Administration ("OSHA") to issue an Emergency Temporary Standard ("ETS"), or rule, that will require all private employers with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated workers to produce a negative COVID-19 test result on at least a weekly basis before coming to work. If implemented, this requirement is likely to impact over 80 million workers in private sector businesses. Unvaccinated employees should be prepared to document that they have secured negative COVID-19 tests each week, and employers will need documentation to provide proof to OSHA if audited for compliance. Businesses who fail to comply with this policy, or the subsequent policy to provide employees with paid time off to be vaccinated, could face thousands of dollars in fines (potentially up to $14,000) per employee.
3. Requiring Employers to Provide Paid Time Off to Get Vaccinated
The President has also called for the ETS to require employers with 100 or more employees to provide paid time off for the time it takes workers to get vaccinated or to recover if they are under-the-weather or experiencing adverse symptoms after receiving the COVID-19 vaccine.
We anticipate that the ETS addressed to private employers with 100 or more employees will be issued in the coming weeks, and we will be able to provide additional guidance once that language is available for review. We are also monitoring legal challenges relating to the enforceability of the proposed OSHA rule.
4. Requiring Vaccinations for Health Care Workers at Medicare and Medicaid Participating Facilities
President Biden has instructed the Centers for Medicare & Medicaid Services ("CMS") to require COVID-19 vaccinations for workers in health care settings that receive Medicare or Medicaid reimbursement, including, but not limited to, hospitals, nursing homes, dialysis facilitates, ambulatory surgical settings, and home health agencies. Some facilities and states have already begun to adopt vaccination mandates for health care sector workers; however, this new action by CMS will cover the majority of health care workers across the country.
5. Asking Large Entertainment Venues to Require Proof of Vaccination or Testing for Entry
During his September 9, 2021 address, President Biden also called on entertainment venues, such as sports arenas, stadiums, large concert halls, and other venues, where large groups of people gather, to require that patrons be vaccinated or show a negative test for entry.
Other Takeaways from Biden's Plan Include:
- Booster shots of the COVID-19 vaccine to be available as early as September 20, 2021 and widely accessible, pending approval by the FDA
- Americans can visit Vaccines.gov to find a vaccine or booster site
- Urging all schools to universally implement vaccine mandates for all staff and eligible students, indoor masking, maintaining physical distancing, improving ventilation, and performing regular screening testing for students and staff
- Urging parents to vaccinate children ages 12 and above
- Requiring teachers and staff at Head Start, Early Head Start, and teachers and staff at the Department of Defense and Bureau of Indian Education-operated schools to be vaccinated
- Urging all states to adopt vaccine mandates for all school employees (already required in California, Connecticut, Hawaii, Illinois, New Jersey, New Mexico, New York, Oregon, Washington, the District of Columbia, and Puerto Rico)
- Investigating states that have prohibited mask mandates at schools (including Iowa, Oklahoma, South Carolina, Tennessee, Florida, and Utah)
- Providing resources to the FDA to support ongoing efforts to develop vaccines for individuals under the age of 12
- Making at-home COVID-19 testing more affordable, sending free tests to food banks and community health centers, and expanding free pharmacy-basted testing
- Continuing to require masking on federal property
- Continuing to require masking for interstate travel (airports and other public transportation methods) and doubling fines
- Strengthening the COVID-19 Economic Injury Disaster Loan ("EIDL") program and the Small Business Administration ("SBA") will increase the amount of funding a small business can borrow from $500,000 to $2 million
- Streamlining the Paycheck Protection Program ("PPP") loan forgiveness program under which the SBA will send a pre-completed loan forgiveness application form to the borrower who can review, sign, and send it back to the SBA, which will work with the lender to complete the forgiveness process
- Increasing support for COVID-19 burdened hospitals and increasing production and distribution of monoclonal antibodies
President Biden's mandates are anticipated to cover about 100 million workers, or two-thirds of all workers in the United States. Stay tuned for additional updates over the next several weeks as more guidance is issued and the administrative actions to enforce Biden's plan take effect.
Employers should start evaluating how Biden's plans may affect their businesses and planning ahead for the implementation of any applicable requirements. As a friendly reminder, employers should consider religious and medical exemptions to a vaccine mandate on a case-by-case basis. Although, an employee's request for accommodation or exemption does not necessarily outweigh undue hardship or a direct threat to workplace safety.
If you have questions about how these plans may impact your business, we invite you to contact one of our employment attorneys. Stites & Harbison, PLLC assists clients of all sizes, including publicly traded corporations, privately held companies, small businesses, trade associations, and non-profit organizations alike. It is our business to help your business navigate the ever-changing field of labor and employment law.
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