Covered federal contractors, healthcare providers and large employers need to stay informed

COVID-19 has tested employers throughout 2020 and 2021. On September 9, 2021, President Biden added to those challenges when he announced via Executive Order his "COVID-19 Action Plan" entitled "Path Out of the Pandemic" (the "Plan"). The structure proposed by the Plan included vaccination, testing, and paid time off requirements to certain employers, to be implemented per later agency guidance and standards.

During the period September through November, 2021, those standards and guidance were issued, in relevant part, for all private sector employers with more than 100 employees ("large private employers"), certain healthcare facilities, and contractors that work with the federal government. All include some version of a vaccine mandate that require, with limited exceptions, all covered employers to implement vaccination mandates for their workforce (or for large private employers the alternative of testing and masking) by January 2022 dates.

Governmental bodies, including state governments, courts, and even the U.S. Senate, have responded in opposition, delaying the implementation enforcement of most of the Plan. Specifically, vaccination mandates for all covered large private employers, healthcare facilities, and federal contractors and subcontractors have been stayed nation-wide by court orders. Although these mandates can be reactivated as the ongoing litigations ensue, it is likely that any reactivation would allow a period for employers to prepare for compliance. But, that is not guaranteed and any grace period is unknown.

Because of the relatively short timeframes to comply with the Plan and the length of time needed for an employee to become "fully vaccinated," many employers had taken significant steps toward complying with the mandates.  Those preparations included communications to employees and requesting, reviewing and deciding requests for medical or religious accommodations from employees who sought to be exempted.  In most cases, employers have paused their preparations as a result of the judicial stays, but they are left in a state of flux, asking what they should  do as these challenges make their way through legislative and judicial processes. The short answer is: prepare, monitor, and wait.

What Do Employers Do Now?

  • First, you should determine if you are a covered employer under any of the guidances or standards, and if so, under which category under the Plan.

    Detail on the applicable mandates for large private employers are discussed in this recent client alert: https://www.sheehan.com/news/here-at-last-osha-vaccination-rules-issued-for-large-employers/. Detail on the applicable mandates for healthcare facilities are discussed in this recent client alert: https://www.sheehan.com/news/healthcare-staff-must-be-vaccinated-by-january-4-2022-cms-issues-interim-final-rule-with-comment-period/. Detail on the applicable mandate for federal contractors and subcontractors, are discussed in this recent article: https://read.nhbr.com/nh-business-review#2021/10/22/?article=3886293.
  • If you are a covered employer, you should familiarize yourself with the relevant guidance or standards and consider your options in the event the applicable mandate is reactivated so that you are prepared to comply with the Plan as quickly as possible if short timeframes are imposed.
  • If you are a covered employer, you may also consider developing a plan for implementing those policies if reactivated, including drafting appropriate communications with your employees.
  • If you are a covered employer and so choose, you could proceed with a private vaccine mandate; this was an option even before the President announced the Plan.
  • If you currently have a vaccine mandate in place or would need to adopt one under the Plan, if reactivated, be sure that you have a process to review and evaluate exemption requests (medical and religious) as outlined in EEOC vaccine mandate guidance.
  • While waiting to learn the fate of the applicable regulations, be sure your COVID-19 screening and workplace safety policies are up to date with CDC guidance, OSHA and EEOC standards, and state law requirements.
  • You should consult an employment lawyer if you have questions or need guidance on steps to be taking now, or if the applicable mandate is reactivated.

There remain many unanswered questions about the Plan and its survival from the ongoing legal challenges. We will provide additional guidance as more information becomes available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.