On September 9, 2021, President Joe Biden announced an action plan that marked an aggressive expansion of the US federal government's role in addressing the COVID-19 pandemic. The action plan will impact mid-size and large employers, federal contractors and healthcare entities that seek reimbursement from Medicare and Medicaid, in addition to taking steps aimed at keeping schools open by supporting mask mandates, mandatory vaccines and increased COVID-19 testing generally.
For private employers with over 100 employees, the action plan directs the Occupational Safety and Health Administration (OSHA) to implement an emergency temporary standard (ETS) that would require such employers to ensure that their workforce is 100 percent vaccinated or require weekly negative tests for employees who are unvaccinated. The action plan also directs OSHA to include in the ETS a mandate for paid leave for employees receiving the vaccine and those recovering from any side effects arising from the vaccine. At this point, it is unknown if employers will be able to require affected employees to utilize their existing bank of paid leave for time spent getting the vaccine or recovering from any side effect, or if employers will have to provide them with an additional grant of leave. Employers that fail to follow the requirements of the ETS are expected to face fines of US$14,000 per violation. It is estimated that these provisions would impact over 80 million employees.
In a corresponding effort to expand the availability of testing, the Administration is utilizing the Defense Production Act to spur production of additional point-of-care and over-the-counter at-home COVID-19 tests.
For federal contractors, the action plan was accompanied by an Executive Order mandating that all employees of such contractors be vaccinated. A companion Executive Order also mandated that all federal employees be vaccinated, each without the option for weekly testing.
On September 24, 2021, in accordance with the directives of the Executive Order, the Safer Federal Workforce Task Force (Task Force) issued guidance to contractors covered by the Order. Pursuant to the COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, covered contractor employees must be fully vaccinated no later than December 8, 2021, with limited exceptions for disabilities and sincerely held religious beliefs. The Guidance also reiterates the masking and social distancing requirements previously implemented. Finally, the Task Force issued a set of answers to Frequently Asked Questions to provide further guidance to contractors navigating their way through these requirements.
For healthcare entities that receive Medicare or Medicaid reimbursement, the action plan directs the Centers for Medicare & Medicaid Services (CMS) to adopt a requirement for vaccinations for those entities' employees as well. This action would extend the CMS' recently announced vaccination requirement for nursing homes to hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. It is estimated that these changes will apply to approximately 50,000 providers and a majority of healthcare employees across the country.
By seeking to implement the requirements on private employers with over 100 employees by use of an ETS, OSHA will conduct an expedited review process that will not involve public comment. Under the Occupational Safety and Health Act of 1970, OSHA has the authority to adopt an ETS, which takes effect immediately upon publication in the Federal Register, where it determines that employees are exposed to grave danger from exposure to harmful agents and that an emergency standard is necessary to protect workers from such danger. Under the Act, upon publication of an ETS, OSHA must begin work on a permanent standard, which must be issued no later than six months after publication of the ETS. And while OSHA took nearly six months to craft and implement the first ETS covering healthcare entities and employees, it is expected that this ETS will be drafted and implemented much sooner. It is also expected that the ETS will face immediate court challenges which could further delay its implementation. Finally, similar standards are expected to be adopted by most state OSHA agencies.
