In a press conference, on September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan (Plan). The Plan outlines a six-pronged, comprehensive national strategy to successfully combat COVID-19. Portions of the Plan will impose new obligations on employers, including federal contractors and subcontractors, healthcare settings and private employers.
Federal Employees. Previously, on July 29, 2021, President Biden announced new requirements for federal employees and onsite federal contractors regarding vaccination status, masking, and social distancing. Federal employees and onsite contractors were to attest to being fully vaccinated against COVID-19 or be required to wear masks on the job, physically distance, be tested weekly for COVID-19, and restricted in their ability to conduct official travel. This July 29 announcement also established the Safer Federal Workforce Task Force (task force) to oversee the development and implementation of COVID-19 workplace safety plans across federal government agencies.
During the press conference, the President walked back the option for covered federal workers and onsite federal contractors to have the option to be tested weekly in lieu of being fully vaccinated, requiring all impacted workers to be vaccinated.
Impacted workers will be given a 75-day grace period to become fully vaccinated unless they have a valid religious or disability exemption.
Federal Contractors and Subcontractors. As part of the Plan, the President, also issued a new Executive Order (EO) which requires certain government contractors and subcontractors to comply with guidance to be issued by the Safer Federal Workforce Task Force (task force). In addition to issuing guidance, the task force is also charged with providing definitions of relevant terms for contractors and subcontractors, explaining the protocols for complying with workplace safety guidance, and providing any exceptions to the guidance that apply to contractors’ and subcontractors’ workplace locations and individuals in those locations working on, or in connection with a federal contract by September 24, 2021.
It is not yet known what guidance the task force intends to issue and whether there would be any vaccine mandate in the guidance.
The EO would apply to any new contracts and to those contracts in need of extension or renewal. The EO provides that a clause must be included in contracts on, or after October 15, 2021, which stipulates that for the duration of the contract, contractors and subcontractors must comply with all guidance for contractor or subcontractor workplace locations published by the task force.
The EO applies to the following contracts:
- Procurement contracts for services, construction, or a leasehold interest in real property;
- Contracts for services covered by the Service Contract Act (SCA);
- Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and
- Contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.
The EO does not apply to grants, to contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, subcontracts solely for the provision of products, or to employees who perform work outside the United States.
By October 8, 2021, contracting agencies must take steps to include the clause in contracts entered into on, or after October 15 that are not covered by the Federal Acquisition Regulation and the clause should begin appearing in covered contracts on October 15, 2021.
Healthcare Settings. Like the previous announcement made by the President on August 18, 2021 for nursing homes, the President issued a statement that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccination for workers in most healthcare settings that receive Medicare or Medicaid reimbursement; otherwise, they risk the loss of reimbursement. Refer to the HR Works blog post, entitled, White House Ties Medicare and Medicaid Funding to Staff Vaccination for additional information.
Private Employers. The Plan instructs the Department of Labor to draft a rule mandating that all businesses with 100 or more workers require their employees to either be fully vaccinated against COVID-19 or show a negative test weekly. The new rule will be issued and enforced by the Department of Labor’s Occupational Safety and Health Administration (OSHA), via an emergency temporary standard (“ETS or rule”). This requirement is expected to impact over 80 million private sector employees.
OSHA’s ETS will also require covered employers to provide paid time off for employees to get vaccinated and recover from any post vaccination side effects. There are not yet any details on how paid leave under the ETS is to be administered and whether there will be any available tax credit in exchange for providing leave.
The ETS would preempt existing state rules, except in states that have their own OSHA-approved state plan. States with their own programs have 30 days to adopt a standard that meets or exceeds the standards in the ETS, and it must cover state and local government employees, as federal OSHA rules do not cover these employees.
It is not yet known when OSHA’s ETS will be released and what the compliance deadline will be, but employers may be fined up to $14,000 per violation for non-compliance.
There are several outstanding questions including, but not limited to:
- What proof will be required of vaccinated employees?
- Which industries will be covered by the rule?
- Will the rule only apply to onsite employees, or will it also apply to remote employees?
- Will employers be required to provide and/or conduct testing, or will obtaining testing and any associated cost be the employee’s responsibility?
- What records are required to be maintained as it relates to vaccination status and weekly testing results?
- How much paid time off will employees receive?
- Will there be a tax credit for providing paid time off for vaccination, particularly, with the Families First Coronavirus Response Act’s (FFCRA) upcoming expiration date of September 30?
- Will FFCRA be extended to help employers shoulder the cost of providing paid time off for vaccination and recovery?
- Will proof of having received the booster be required under the ETS, when booster shots become available?
- When will the rule take effect?
- How will states with state plans respond to the ETS once its issued?
ETS Impact and Considerations for Private Employers
Because OSHA has the authority to issue a rule rapidly, if it can show that workers are exposed to a serious danger and that the rule is necessary to address that danger, impacted private employers should not panic but should begin to prepare to comply by outlining what their process will be for verifying the vaccination status of their employees and how they will collect weekly negative test results from non-vaccinated employees.
Employers should be careful about what types of information they collect from employees and should review/update their recordkeeping practices to ensure confidentiality and compliance with the Americans with Disabilities Act which requires employers to maintain all medical related information as a confidential medical record.
It is highly likely, based on the administration’s Plan, to make testing readily available and to provide free testing options, including increased availability of at home tests that unvaccinated employees will be responsible for procuring testing and providing those results to their employer. However, employers may want to explore available options and costs associated with providing onsite testing or seek out testing facilities to whom they may refer their employees. Employers who decide to offer onsite testing must also consider who will conduct the testing, what type of test will be used, how quickly the results will be available and ensure that proper training and personal protective equipment is provided for individuals conducting or handling tests.
Employers will also need to consider and determine how they intend to address potential employee relations issues, such as an employee’s refusal to provide vaccination status or be tested, in addition to test result delays which could cause employees to miss time from work. For some employers, the decision may be to determine if it makes sense to mandate that their entire workforce be vaccinated.
The rule is expected to be challenged in court by employers and some states. However, legal standing may be weakened for those states that are subject to OSHA and by the fact that this is not an explicit vaccine mandate because testing is an alternative to being vaccinated.
Next Steps for Employers
Employers who are impacted by part(s) of the Plan, should begin to consider how they will navigate operational challenges related to required vaccination and testing including, but not limited to reviewing/updating policies and procedures, workplace testing, vaccination tracking, recordkeeping requirements, reasonable accommodations for religion and disability, wage and hour implications, collective bargaining agreements (if applicable), employee confidentiality and privacy issues, and interplay with state and/or local laws.
Due to the numerous outstanding questions and the potential for needing to quickly comply, employers should consult with their legal counsel for additional guidance.
HR Works will continue to monitor this topic and provide updated information as it becomes available.