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On September 9th, President Biden released the Path Out Of The Pandemic, his six-pronged COVID-19 Action Plan, which contained sweeping vaccine mandates for thousands of employers. Among other things, the Plan requires that employers with 100 or more employees, employers in the healthcare industry and federal contractors implement mandatory vaccine requirements for their employees. It is expected that these new requirements will impact approximately 100 million employees nationwide and will require immediate action by many employers.

Employers with 100 or More Employees

The Occupational Safety and Health Administration (OSHA) will soon issue requirements for 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. Failure to comply with these requirements may result in penalties of up to $14,000 per violation.

OSHA will also require that employers subject to the vaccine requirement to provide paid time off to employees for time spent getting the vaccine and recovering post-vaccination.

It is expected that this requirement will impact over 80 million workers nationwide.

Employers in the Healthcare Industry

The Centers for Medicare & Medicaid Services (CMS) will require COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings and home health agencies.

The vaccine requirements will apply to nursing home and hospital staff as well as staff in other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers and staff who are not involved in direct patient, resident or client care.

It is expected that this requirement will impact approximately 17 million healthcare workers across the country. CMS will publish an Interim Final Rule with Comment Period in October.

Federal Workers and Contractors

President Biden signed Executive Orders requiring COVID-19 vaccinations for all federal executive branch employees and employees of federal contractors and subcontractors within the next 75-days, subject to limited exceptions for certain medical conditions and sincerely held religious beliefs.

Notably, these orders, which supplement President Biden’s July 29, 2021 directive that employees and onsite contractors must disclose their vaccination status and, if they were not vaccinated, to mask, socially distance and undergo regular testing, eliminate the testing option for those who are not vaccinated unless they receive an approved exemption. 

The Safer Federal Workforce Task Force is expected to provide further guidance for federal contractors by September 24.

It is expected that these requirements will impact approximately 2.5 million workers nationwide.

Key Takeaways:

You need to begin planning now and to consider questions such as: how does this new policy reconcile with state and local laws that may seemingly conflict? Will we need to pay for testing? Can and should we conduct testing on site and, if so, how will we manage the collection and safe-keeping of employee medical data? How will this policy apply to our remote work force?

We can help you wade through these questions along with the multitude of additional questions that employers like you are asking right now.

While the specific requirements will be detailed in the coming days and weeks, employers subject to these new mandates should take the following steps:

  • Work with counsel to establish a vaccination policy and procedure that is consistent with the current mandates and applicable law, and stand ready to update that policy once OSHA issues its Temporary Emergency Standard.
  • Consider whether to offer the vaccine to employees onsite or require employees to obtain the vaccine from a third party and the associated legal implications.
  • Consider whether you will pay for the weekly test and the wage and hour implications associated with obtaining the weekly test.
  • Work with counsel to develop a reasonable accommodation request form, and to implement a process by which employees can request an exemption or other accommodation on account of a qualifying medical condition or sincerely held religious belief, leading to an interactive process and potential accommodations.
  • Work with counsel to develop a process for employees to demonstrate proof of vaccination and appropriate controls to protect and maintain vaccination documentation.

Our legal and federal government relations teams are actively monitoring these legal changes, policy implications, and further potential action by the Administration and Congress.