Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 9, 2021, President Joseph R. Biden released a sweeping new COVID-19 Action Plan, Path Out of the Pandemic. This Plan includes mandates that employees working for large private employers, the federal government, federal contractors, and healthcare entities be vaccinated against COVID-19. The Plan also includes other points of interest to employers, including requirements that large entertainment venues screen patrons for vaccine status upon entry, and expanded access to federal financial assistance for many businesses.
Employers of 100 or More Employees
For the private sector, the Plan directs the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS) that will require all employers with at least 100 employees to ensure their workforce is fully vaccinated or else subjected to weekly COVID-19 testing before coming into work. The ETS will also require covered employers to provide employees paid time off to get vaccinated and recover from side effects associated with the COVID-19 vaccine.1
The White House expects that the ETS will apply to over 80 million private sector workers. It is still unclear exactly how the ETS will be worded and implemented and what OSHA’s timeline for issuance will be. The way that the standard is worded will have a significant impact on employers and will be carefully monitored.
Executive Branch Employees and Federal Contractors
As for the federal government, President Biden signed two executive orders that, respectively, mandate vaccination for all executive branch employees and for some employees of some federal contractors.
The federal worker mandate alone is expected to cover more than 4 million Americans, including over 2 million in the federal civilian workforce, throughout the United States and around the world. Previously, the administration had only mandated vaccination within the Department of Defense, Department of Veterans Affairs, the Indian Health Service, and the National Institutes of Health. As this executive order applies within the executive branch only, congressional and federal court staff fall outside its scope.
These orders pertaining to the federal government’s employees and contractors build on and supplement the president’s July 29, 2021 directive that required employees and onsite contractors to disclose their vaccination status and, if they were not vaccinated, to mask, socially distance, and undergo regular testing. The new orders eliminate the testing option for those who are not vaccinated unless they receive an approved exemption. Thus, federal employees may no longer “test out” of vaccination.
The White House has indicated that while disability or religious exemptions may be approved on a restricted basis, workers who do not qualify for such exemptions will be subject to a 75-day “ramp-up” period in which they must become fully vaccinated.
Exactly what is going to be required of federal contractors is to be determined by a Safer Federal Workforce Task Force (Task Force), which has been ordered to issue its guidance by September 24. Until then, it is not clear what is going to be required. However, the administration had already announced in July that personnel working at federal facilities would be required to be fully vaccinated against COVID-19. The executive order is generally applicable to the same types of contracts that are covered by the administration’s recent executive order increasing the minimum wage, and whatever requirements are established by the Task Force will “apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”
The Plan also provides that the Centers for Medicare and Medicaid Services (CMS) will begin requiring vaccination for employees in most healthcare settings, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, as a condition for continued federal funding. The administration had previously imposed such a condition on nursing homes only. The new requirement will likely impact approximately 50,000 providers and 17 million workers.
Large Entertainment Venues Must Require Proof of Vaccine or Negative Test
The Plan calls on entertainment venues like sports arenas, large concert halls, and other venues where large groups gather to require that their patrons be vaccinated or show a negative test upon entry. This may preempt some state and local restrictions on such businesses’ inquiring into their patrons’ vaccination status, while bolstering other states and localities that have adopted similar requirements.2
Expanded Access to Federal Assistance
Recognizing the pandemic’s ongoing impact on private businesses, the Plan provides for expanded federal financial assistance to businesses in need.
First, the Plan calls for strengthening the Economic Injury Disaster Loan (EIDL) program, providing for long-term, low-cost loans. Improvements include expanding the amount of funding available to any one business from $500,000 to $2 million, which can be used to hire and retain employees, purchase equipment or inventory, or pay off higher-interest debt. No business that receives funding will owe repayments for two years. The EIDL program will be targeted towards hard-hit businesses like restaurants and hotels, and the Small Business Administration (SBA) will offer a 30-day exclusive window for only small businesses to apply, as long as their requests do not exceed $500,000.
Second, the Plan promises improvements in the Paycheck Protection Program (PPP), which forgives federal loans to employers that use such loans to fund payroll. Borrowers with loans of $150,000 or less will enjoy a new streamlined approach to wipe their debts clean. The SBA will send these borrowers a pre-completed application form for the borrower to sign and return, completing the process. The administration expects that this new process will take borrowers no more than six minutes to complete.
Other Points of Interest
In an effort to increase vaccination in schools, the Plan requires that staff in federally run schools be vaccinated and calls on all states to mandate vaccination for their own school employees.
To expand access to testing, the Plan calls for a federal investment of nearly $2 billion to procure 280 million rapid and at-home tests, increasing the availability of these tests for employers that require their employees to undergo regular testing. Medicaid will also be required to cover at-home tests. In many cases, however, employers that offer employees the option of regular COVID-19 testing in lieu of vaccination will face costs associated with such tests, including the possibility that employees in some jurisdictions must be compensated for time spent undergoing such tests.
Lastly, the Plan maintains masking requirements on federal property and in interstate travel.
Guidance in these areas is changing on an almost daily basis. Littler will keep readers apprised of significant developments in this rapidly evolving area of the law.
1 Similar requirements currently apply to private employers in numerous jurisdictions, including California, Massachusetts, and New York, but the proposal reflects a significant expansion of paid leave on a nationwide basis. See, e.g., Devjani Mishra, Emilie Hammerstein, Stephanie Mills-Gallan and Sebastian Chilco, Littler Lightbulb: A Dose of Paid Time Off for COVID-19 Vaccinations, Littler Insight (Apr. 16, 2021).
2 See, e.g., Lisa M. Griffith and Devjani H. Mishra, The Key to NYC Pass: Vax Up or Miss Out, Littler Insight (Aug. 17, 2021); Lisa M. Griffith, Devjani H. Mishra and Mark T. Phillis, No Soup for You & Take Your Coffee to Go – Accommodations and the Key to NYC Pass, Littler Insight (Aug. 19, 2021); Jeremy Wood, Nicholas McKinney, Tom Holt, and Alka Ramchandani-Raj, California and Washington Issue Vaccine Mandates — Frontrunners in What Appears to Be a Growing Trend, Littler Insight (Aug. 12, 2021); Mandatory Employee Vaccines – Coming to A State Near You?, Littler Insight.