On September 9, 2021, President Biden issued a sweeping COVID-19 Action Plan aimed at “reduc[ing] the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.” This action plan, if fully implemented, will directly and materially impact tens of millions of federal and private sector workers in the following ways:
- Require all private employers with 100+ employees to ensure their workers are vaccinated or tested weekly. The implementation of this requirement is subject to the Department of Labor’s Occupational Safety and Health Administration (OSHA) issuing an Emergency Temporary Standard (ETS).
- NOTE: OSHA’s new ETS will be effective immediately upon issuance in all federal OSHA jurisdictions. States that have their own OSHA-approved plan and agency (like Arizona), can either adopt OSHA’s ETS or draft their own alternative standard that is at least as effective in protecting employees as the OSHA ETS within a specified time frame.
- Require vaccinations for all federal workers. See Federal Employee Executive Order.
- Require vaccinations for employees of certain contractors and subcontractors that do business with the federal government for new, extended or renewed contracts that are effective on or after October 15, 2021. See Federal Contractor Executive Order.
- Require vaccinations for workers at Medicare and Medicaid participating hospitals and other health care settings. See CMS Press Release re Expanded Requirements.
- Require employers to provide paid time off to get vaccinated and to recover from vaccine-related illness.
What We Don’t Know
Until further guidance is provided by OSHA and the other federal agencies charged with implementing these requirements, affected employers are very much in a wait and see mode. Among the many critical unanswered questions are:
- Will these requirements survive the onslaught of anticipated legal challenges? In fact, the Arizona Attorney General has already filed a lawsuit challenging the vaccine mandate.
- If the ETS requirements survive legal challenge, when will they become effective and how long will they last?
- How do you count the 100-employee private employer coverage requirement?
- Do these requirements apply to remote workers?
- Can employers require employees to use existing paid time off for vaccine and vaccine recovery time?
- Are employers required to compensate employees for weekly testing time and pay for the cost of the test?
- How are employers expected to verify the vaccination status or negative test results of their workers and maintain these records?
- What are the penalties for non-compliance?
What to Do
To prepare for the potential implementation of these vaccination/testing mandates, affected employers should consider taking the following action:
- Assemble a COVID-19 vaccination/testing team to be the subject matter experts and point of contact on this topic.
- Conduct a confidential vaccination status survey of your workforce so you can assess the potential disruption to your business.
- For covered private employers, determine if your organization will give employees the option to be tested in lieu of getting vaccinated or implement a vaccine only policy.
- Establish a protocol to evaluate religious and medical vaccine exemption requests.
- Establish a protocol to confidentially maintain records relating to compliance with these requirements.
- Consider whether your organization will provide new paid time off for vaccination/testing time or require employees to use existing paid time off (assuming this is permitted by the ETS).
- Prepare for staffing shortages caused by employees who leave the organization (either voluntarily or involuntarily) due to non-compliance with your organization’s requirements.
We are closely monitoring these developments and will post an update when more information becomes available. In the meantime, if you have any questions, please contact us.