On September 9, 2021, the White House released two signed Executive Orders immediately after President Biden’s remarks regarding the Administration’s COVID-19 Action Plan (the “Plan”) on the continued fight against the COVID-19 pandemic. The Plan, entitled, Path Out of the Pandemic focuses on increasing vaccinations and slowing the spread of the Delta variant.
The Plan and the two Executive Orders are discussed below.
Path Out of the Pandemic, President Biden’s COVID-19 Action Plan
In his remarks, President Biden announced that the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has been charged with drafting a rule that will require all employers with 100 or more employees to mandate vaccinations for their workforce or obtain proof of a negative test at least once a week.
Additional clarity is provided in the Plan, which provides that OSHA will be issuing an Emergency Temporary Standard to implement this requirement, impacting over 80 million workers in private sector businesses. According to the Plan, “to ensure that no worker loses a dollar of pay because they get vaccinated,” OSHA is developing a rule to require employers with 100 or more employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. We will be closely monitoring this development and will keep employers apprised of the rule’s requirements once it is issued.
The President also announced that vaccinations will be required for more than 17 million healthcare workers at Medicaid or Medicare participating medical facilities, including hospitals. This is a significant broadening of the existing requirement directed at nursing home employees.
Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees
This Executive Order requires that all federal government employees be vaccinated (again, subject to limited exceptions, such as those related to religion and disability). Guidance on the vaccination requirement for federal employees from the Safer Federal Workforce Task Force is due by September 16, 2021. That being said, according to the White House Press Secretary, federal employees will have 75 days to get vaccinated.
According to the Plan, the vaccination mandate will “extend[ ] to employees of contractors that do business with the federal government.” This will be an area that we will have to dive into carefully so as to provide additional guidance and information that will be relevant to our clients who do business with the federal government. More to come when the guidance is released.
Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors
This Executive Order directs federal agencies to include a specific clause in their federal contracts for services, construction, or a leasehold interest in real property entered into on or after October 15, 2021 that will require contractors to comply with COVID-19 guidance. The Safer Federal Workforce Task Force will publish the guidance by September 24, 2021. This guidance is likely to include the vaccination requirement.
There is no doubt that President Biden’s remarks, the Plan, and Executive Orders raise a litany of questions and concerns. While most of the questions remain unanswered at this time, additional guidance and rules will be issued within the next few weeks. In the meantime, employers with 100 or more employees should start exploring: (a) ways in which they will implement the upcoming COVID-19 vaccine mandate, or whether they will defer to the weekly testing requirement, (b) who will handle, and how to handle, requests for religious and disability exemptions; and (c) how pay for, and deal with, employee absences for getting vaccinated and recovering from a vaccination. Entities that do business with the federal government, regardless of size, should also start exploring how to implement a vaccine mandate, or weekly COVID-19 testing for its employees.
Further guidance from the government is expected shortly and we will continue to monitor developments on these topics. Employers with specific questions are encouraged to speak with an employment attorney.
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