By Thomas Spyker, Esq.

On September 9, 2021, President Joe Biden announced the administration’s new Action Plan to combat the ongoing COVID-19 pandemic, the Path Out of the Pandemic. The Plan, a series of executive actions and proposals, mandates vaccines for several categories of employees. Employees impacted by the Plan include those working for large private employers (100+ employees), most healthcare workers, federal employees, and federal contractors. The scope of the announcement was met with some surprise and several threats of legal challenge. There are still many unanswered questions about the Plan, but here is what we know so far. 

Large Private Sector Employers (100 Employees or More)

The Plan directs the Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. 

While President Biden was widely expected to announce mandates for executive branch federal employees, the private sector requirements came as a surprise to many. OSHA’s ETS mechanism allows the agency to enact emergency regulations and enforce them immediately if there is a “grave danger” to worker safety. OSHA may maintain an ETS for six months before it must be replaced by a permanent rule. The White House estimates this ETS will apply to over 80 million private-sector employees, nearly 75% of the private sector workforce. 

To date, there have not yet been many details on the specifics of the anticipated ETS or a timeline for its issuance. However, based on current OSHA regulations, past ETS issuances, and the initial response to the announcement – we can anticipate a few things:

  • How 100 employees will be defined: If the ETS operates like most OSHA regulations, the count will be based on the number of employees company-wide, not per physical worksite location. 
  • Work from home: Traditionally, OSHA has avoided addressing in-home safety issues related to employees working remotely. If the ETS is silent on employees working 100% from home, interpretation of other OSHA regulations would suggest that the mandate might not extend to this subclass of employee.  
  • There will be legal challenges: Several state Governors have already announced an intent to challenge the ETS as soon as it is issued. Enforcement of the ETS may be delayed by these challenges.

At this early stage, these are just some educated guesses, subject to change. As soon as the actual ETS is issued we will update and expand on our guidance. 

In addition to the mandates, employers will be required to give workers paid time off to get vaccinated and to recover from any vaccine side effects. It is not yet clear if employers will bear the responsibility for this paid time or if there will be some tax credit incentive similar to paid leave provisions introduced last year.  

Healthcare Workers

The Plan mandates vaccines for more than 17 million healthcare workers employed at approximately 50,000 facilities across the country. This mandate is accomplished by directing the Centers for Medicare and Medicaid Services (CMS) to begin requiring vaccinations for employees in most healthcare settings as a condition to continue receiving federal funding. Previously, the administration had imposed this condition on nursing homes only. Now, the Plan extends this mandate to most healthcare settings including hospitals, ambulatory surgical settings, and home health agencies. 

Federal Employees and Contractors

As part of the Plan, President Biden has already signed two executive orders requiring vaccines for all executive branch employees and some federal contractors. Previously, Federal employees had an option to test, similar to that outlined for private employers above. The new order eliminates this option. Unvaccinated federal employees will be afforded a 75-day period in which they must get vaccinated or thereafter face progressive discipline up to and including termination. 

The specific requirements for federal contractors are not yet clear. Specific requirements will be determined by a Safer Federal Workforce Task Force which will issue its guidance on or before September 24. 

Other Measures 

In addition to the vaccine mandates, the Plan outlines several other measures to continue combating COVID-19 and recover from the extended pandemic including:

  • Mask Mandates: The Plan extends mask mandates while traveling on most airplanes and other modes of interstate travel through January 18, 2022. Mask mandates were also extended on federal property. 
  • Large Venue Safety: The Plan calls for vaccines, negative tests, and masks for large venues such as sporting and concert arenas. No enforcement mechanism is attached to this portion of the Plan. 
  • School Safety: The plan requires all staff in federally run schools to be vaccinated and calls on the states to implement similar requirements. 

The administration’s new Action Plan is wide-sweeping, and the details remain unclear. While we will continue to update our guidance, please reach out to a member of Reminger’s Employment Practices Defense Group if you need guidance on your specific situation. 

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.  THIS IS AN ADVERTISEMENT

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