With the Delta variant continuing to surge throughout the country, employers have begun to seriously consider mandatory vaccination policies. On September 9th, we presented a webinar on the topic, pointers of which we will recap below. Shortly after our webinar, the Biden Administration released a COVID-19 Action Plan which combines executive orders with forthcoming regulatory action. The Plan will reach deep into the private and public sectors, mandating vaccination (or, in some cases, weekly testing) for a wide variety of workers. Much of the Plan is still being developed and will take effect in the coming weeks, but here is some of what we know as of early Friday morning:
Employers with 100+ Employees
The federal Occupational Safety and Health Administration (OSHA) will issue a rule requiring employers with 100 or more employees to mandate vaccines for their workforce or to require unvaccinated employees to test for COVID-19 on a weekly basis. The rule will also require such employers to provide paid time off to employees both to obtain the vaccine and to recover from any side effects of the vaccine.
Although many details remain unclear, it appears that OSHA will be putting the burden on employers to implement the vaccine mandates, as opposed to directly requiring employees to become vaccinated or test negative. Although not addressed in the Administration's press release announcing the Plan, an administration official told the press that the OSHA rule will include penalties of $14,000 per violation. It seems likely that this penalty will fall on employers and not on uncooperative employees.
At the time of this Alert, it remains unclear if this requirement applies strictly to the private sector, though it seems probable in light of some of the other announced rules. The Plan at one point states that it will apply to “all employers” but later notes the impact that the requirement will have on “private sector businesses.” Expect further guidance on this issue from OSHA. Other open questions include the deadline for compliance, how employees are counted, whether part-time or seasonal workers will be included within the mandate, who will be responsible for the cost of weekly testing, how much paid time off employers will be required to provide (and whether existing sick leave could be used), and whether employers will receive any guidance about handling non-compliant employees or addressing requests for medical or religious exemptions.
The Plan does not indicate when OSHA will be issuing its rule. As of press time, the OSHA website is silent on this requirement. Stay tuned for further developments.
Federal Employees and Federal Contractors
President Biden issued executive orders requiring all federal executive branch employees and all employees of federal contractors to be vaccinated, thereby eliminating the testing option that was previously available.
With respect to federal executive branch employees, the Safer Federal Workforce Task Force, which President Biden created on his first day in office, will issue guidance to federal agencies within the next week about how to implement the vaccination requirement. Although this guidance will be limited in applicability to federal employees, it may shed light on the Administration's stance on many of the parallel considerations private employers face when implementing a mandatory vaccination policy.
With respect to employees of federal contractors, the Safer Federal Workforce Task Force must issue guidance regarding a vaccine mandate and any exceptions by September 24, 2021. All federal agencies must immediately begin including a provision in new or renewed contracts requiring that the contractors will abide by the Task Force's guidance.
The executive orders do not discuss what details may be included in the Task Force's guidance. However, Administration officials have suggested that these types of employees will not have an option to test weekly instead of getting vaccinated. The White House Press Secretary stated that the executive orders specifically address medical or religious exemptions, although the executive orders themselves do not mention these issues. It seems reasonable to assume that the Task Force's guidance will incorporate medical and religious belief exemptions.
Health Care Workers
The Centers for Medicare & Medicaid Services (CMS) will require COVID-19 vaccinations for workers in health care settings that receive Medicare or Medicaid reimbursement. This requirement extends the Administration's earlier vaccine mandate for nursing home employees that was announced in August. The final rule mandating vaccination will not be in effect until October. Nevertheless, CMS has urged all unvaccinated health care workers to begin the process immediately.
The Plan does not mention whether health care workers will be able to test weekly in lieu of vaccination. However, the Plan's stated goal for this particular requirement is to ensure that patients nationwide have “assurance of the vaccination status” of their medical providers. That goal suggests that testing will not be an option.
Head Start Programs
Head Start and Early Head Start teachers and staff will also be required to receive the COVID-19 vaccine. The Department of Health and Human Services (HHS) has already announced that these employees must be vaccinated by January 2022. HHS is expected to develop a plan to implement this requirement in the coming weeks.
As with the requirement for health care workers, it is unclear if Head Start teachers and staff may test out of the vaccination requirement. However, the Plan's stated goal is to keep schools and early childcare centers open, which again suggests that these employees will not be able to test in lieu of vaccination.
The Administration's Plan does not directly apply to many small or midsized employers. However, as our colleagues discussed on Thursday, these employers may wish to mandate vaccinations for their workforces voluntarily.
At the webinar, we discussed some of the practical considerations that employers will want to consider: How many employees are already vaccinated? Is there a risk of high attrition with a mandate? Are customers or clients requiring vaccination to work with them?
For employers, there are a few steps to take beyond surveying employees. Employers should develop a written policy. Employers should also develop religious and medical exemption request forms for employees to fill out if needed. Employers should designate a recipient to review such forms and, in any event, should keep all vaccination records confidential.
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.