President Biden’s COVID-19 Action Plan – More Questions Than Answers

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.

EEOC Clarifies COVID-19 Vaccination Rules for the Workplace

On May 28, 2021, the EEOC updated and expanded technical assistance concerning vaccinations in the employment context. The key updates to the technical assistance are summarized below:

• Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19 (and wear masks), so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations (i.e., disability, sincere religious belief and pregnant workers).
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

The American Rescue Plan – What Employers Need to Know

On March 10, 2021, Congress passed the American Rescue Plan Act of 2021 (“Rescue Plan”) and President Biden signed it into law the following day.  The Rescue Plan includes several provisions that directly impact the workplace.  These provisions are summarized below:

  • Extends the Families First Act Coronavirus Response Act’s (“FFCRA”) optional COVID-19 paid leave benefits through 9/30/2021.  Covered employers (less than 500 employees) may, but are not required, to offer these benefits.  Those that do are entitled to a tax credit to offset the cost of providing this paid leave  
  • Expands FFCRA benefits in the following ways, effective 4/1/2021:
    • Provides emergency paid sick leave (“EPSL”) for the following additional qualifying reasons: (i) obtaining a COVID-19 immunization or recovering from a medical condition related to such an immunization; and (ii) seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 when an employee has been exposed to COIVID-19 or the employer has requested such test or diagnosis
    • Provides an additional 10 days of EPSL
    • Expands the reasons for qualifying for paid emergency FMLA leave (“EFML”) to include any of the reasons that would qualify for EPSL (including the 2 new EPSL reasons set forth above). Before this expansion, EFML was only available if the employee was unable to work (or telework) to care for a child whose school or place of care was closed or unavailable due to the public health emergency
    • Removes the 2-week waiting period to qualify for EFML
    • Raises the aggregate cap on EFML from $10,000 to $12,000
  • Requires employers that voluntarily provide these benefits to do so in a uniform manner without discriminating against certain categories of workers
  • Extends the unemployment benefits under the CARES and Consolidated Appropriations Acts through 9/6/2021, with additional tax benefits for some individuals
  • Provides a 100% COBRA premium subsidy effective April 1-Sept. 2021 for employees involuntarily terminated who want to remain on their employer’s health insurance     

We will provide further updates after the Department of Labor issues guidance to address the implementation of these provisions.  If your organization operates outside of AZ, you should check state law to determine if there are additional state or local laws that mandate paid leave or other benefits related to the pandemic. 

FOLLOW-UP: Employer-Mandated Vaccines – Legal?

On December 16, 2020, the EEOC issued updated guidance on how a COVID-19 vaccination interacts with the legal requirements of the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA). https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

The high-level takeaways from the guidance are:

  1. Employers are legally permitted to mandate the vaccine, provided they make reasonable accommodations for employees who present with disabilities or sincerely held religious beliefs (see 12/7/20 email below);
  2. Terminating an employee who cannot get the vaccine due to a disability or religious objection should be the absolute last resort; employers must first consider other options, such as telework or a leave of absence.
  3. The COVID-19 vaccine is not a prohibited medical examination in an of itself, but pre-vaccination medical screening questions asked in connection with an employer-administered vaccine that are likely to elicit medical information about an employee’s disability can only be asked if the questions are “job-related and consistent with medical necessity.” Employers can avoid this issue by not administering the vaccine and instead require employees to be vaccinated by their own medical providers or by making the vaccination voluntary.
  4. Requiring an employee to provide proof of a COVID-19 vaccination does not amount to a prohibited disability-related inquiry, provided the proof does not disclose medical/genetic information about the employee.

An employer-mandated vaccination program, although legal, raises thorny considerations, including wage and hour, potential for workplace conflict, and other logistical complications. Tread carefully and seek legal counsel if your organization opts to mandate the vaccine.

Employer-Mandated Vaccines – Legal?

As we anxiously await the roll-out of the COVID-19 vaccine, employers are undoubtedly wondering if they can or should make the vaccine mandatory.  Currently, there is no law banning such a mandate.  However, if an employer puts such a mandate in place, it must consider making exceptions in compliance with Title VII of the Civil Rights Act and the Americans With Disabilities Act (ADA).  Note:  Title VII and the ADA only apply to employers with 15 or more employees.

Specifically, employees who object to a vaccine based on a sincerely held religious belief may be entitled to an exemption under Title VII.  Likewise, an employee may be entitled to an exemption based on an ADA disability that prevents the employee from taking the vaccine.  An employer can deny an employee’s religious or medical exemption request if the employer can prove the exemption would impose an undue hardship on the employer or pose a direct threat to the health and safety of others.  Determining whether an undue hardship or direct threat exists is a very fact-intensive, case-by-case inquiry.  Health care providers, first responders, schools, nursing homes and other business that service high risk populations or work in high risk environments will likely pass the undue hardship/direct threat test.

Because of the potential legal complications with mandating a vaccine, employers may opt instead to establish a policy aimed at encouraging, rather than mandating, employees to get vaccinated.  The encouragement can take the form of setting up free on-site vaccination clinics and/or offering incentives to employees who get vaccinated.  See CDC guidance on Promoting Vaccination in the Workplace.  https://www.cdc.gov/flu/business/promoting-vaccines-workplace.htm#anchor_1554819279614.