On Sept. 9, President Biden issued a six-pronged plan to combat COVID-19, including various requirements that will impact employers and organizations. While there are many unknowns at this point, there are issues that employers can begin addressing now to prepare for the forthcoming guidance.
Key employer components
The Plan from the White House includes the following points that may impact employers:
Requiring all employers with 100+ employees to ensure their workers are vaccinated or tested weekly.
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require 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. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement and has indicated it will be published in the coming weeks.
The new OSHA rule may not apply to local governments, if the local government is not subject to the OSH Act.
Requiring employers to provide paid time off to get vaccinated.
OSHA is developing a rule that will require employers with more than 100 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. This requirement will be implemented through the ETS.
Requiring vaccinations for all federal workers and for millions of contractors that do business with the federal government.
The President has signed an Executive Order to require all federal executive branch workers to be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government. The Safer Federal Workforce Task Force will provide rules and procedures by Sept. 24, 2021.
Requiring COVID-19 vaccinations for health care workers at Medicare and Medicaid participating hospitals and other health care settings.
The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS and will apply to nursing home staff, as well as staff in hospitals and 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.
Requiring staff in Head Start programs, Department of Defense schools, and Bureau of Indian Education-Operated schools to be vaccinated.
Teachers and staff at Head Start and Early Head Start programs, teachers and child and youth program personnel at the Department of Defense (DOD), and teachers and staff at Bureau of Indian Education-operated schools will be required to get vaccinated. The Department of Health and Human Services (HHS) will initiate rulemaking to implement this policy for Head Start and Early Head Start programs.
Frequently Asked Questions
We know this presents numerous questions for employers. We have some of the frequently asked questions included below, along with some of our initial thoughts and/or where subsequent information will be coming from.
- How do we count employees? Do partners or owners factor into the count? Do employees in different locations count toward the same entity? Will remote workers be counted?
We anticipate broad interpretation for employee counts. This information should be outlined in the pending ETS from OSHA.
- Who will pay for the vaccinations or testing?
This information should be outlined in the pending ETS from OSHA.
- Will employees be allowed medical or religious accommodations?
Likely yes. This information should be outlined in the pending ETS from OSHA.
- Will employees who have recently had COVID-19 be exempt from the vaccine or testing requirements?
This has not yet been addressed. This information should be outlined in the pending ETS from OSHA.
- What will enforcement and penalty assessment include?
Typical OSHA penalties are up to $14,000 per day. This information should be outlined in the pending ETS from OSHA.
- Will this be challenged in court?
Several states have already indicated likely challenges.
Ways to prepare
Employers should consider taking the following actions now to prepare for compliance of the requirements in advance of release of the OSHA ETS and guidance from CMS:
- Determine which employees are and are not vaccinated.
- Consider whether you will collect proof of vaccination for employees and how it will be kept confidential.
- Consider if you will provide onsite vaccinations or onsite testing. If not, provide a plan for these options.
- Consider whether you will provide paid time off for employees to obtain or recover from the vaccination or for regular testing if it is not required.
- Consider what your process will be if employees request an exception or accommodation.
- Consider what action will be taken if employees refuse to be vaccinated or submit to testing.
- Prepare to provide communication updates to employees as you are able.
- Draft updates to any related employment policies.