In a bold move, on September 9, 2021, President Biden announced several measures aimed at curtailing the spread of COVID-19 in communities by targeting public and private employers. The new requirements will affect millions of American workers and are likely to be faced with strong opposition from certain federal and state law makers, as well as special interest groups such as labor unions (who often view issues regarding workplace health and mandates as a required bargaining issue).
Specifically, President Biden has required all federal workers as well as employees of federal contractors to be vaccinated against Covid-19. Federal workers will have approximately 75 days to be vaccinated. According to the Executive Order (“EO”), the Safer Federal Workforce Taskforce (“SFWT”), which was commission on January 20, 2021 (President Biden’s inauguration date) and had been tasked already with implementing certain safety protocols around COVID-19, has seven (7) days from the date of the EO to put forward guidance around implementation for all agencies covered by the order. However, the EO does not appear to create any private right action against the government for failure to enforce or implement the EO. Although this is certainly an expansion of regulation, before Thursday’s announcement, the Department of Defense, Department of Veterans Affairs, and certain parts of the health department had already required vaccinations for their employees, and the rest of the Federal employees were required to be vaccinated or undergo regular testing and subject to mask-wearing and certain other restrictions. Concerning federal contractors, the EO mandating COVID-19 vaccination asserts that doing so will bolster the economy and efficiency in Federal procurement. The SFWT has until September 24, 2021 to provide definitions, protocols and any exceptions with regard to federal contractors.
In addition to federal workers and contractors, President Biden is using continued reimbursement for Medicare and Medicaid services as the proverbial carrot intended to compel healthcare institutions to similarly require their employees be vaccinated. Although President Biden said he would require vaccination for federally funded nursing homes last month, the current order is aimed at a much broader group of workers; it is anticipated the mandate will affect more than 50,000 healthcare providers and 17 million healthcare workers. The Centers for Medicare and Medicaid Services stated that this requirement will allow for consistent standards across healthcare facilities and across states, and give patients assurances that those providing care to them are vaccinated for the protection of all.
Finally, under President Biden’s plan, employers with 100 or more employees are also required to ensure their workforce is vaccinated against COVID-19 or require them to submit to weekly COVID-19 testing. President Biden has charged the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) with developing emergency temporary standards for private-sector businesses. Those standards will pre-empt existing rules by state governments, except those states which have their own OSHA-similar agencies (which account for about half the states in the country). However, those states will have 30-days to adopt standards at least as restrictive as the federal OSHA guidance (and must cover state and local government employees), or else the federal rules will control. Employers who meet the minimum-employee threshold will also be required to provide employees with paid time off for receiving the vaccine, and violations for non-compliance with the rules set forth by OSHA will come with a hefty price tag of $14,000 per violation. Although some large private employers have already implemented vaccination mandates which have garnered media attention, the new mandate will affect some 80 million workers.
President Biden has also called on governors to require teachers and staff to be vaccinated or institute regular testing and encourage large public venues to require vaccination for admissions or testing as well to curb the spread of COVID-19, and specifically the Delta variant.
It is important to note that all of the vaccination requirements will be subject to any lawfully required exceptions, such as disability or strongly held religious belief (as has previously been set forth by guidance issued by the Equal Employment Opportunity Commission), but that will not exempt employees from undergoing weekly testing instead. In addition, the guidance and rules provided by those tasked with creating them, will be the floor for these types of requirements and, to the extent (if at all possible) state or local governments or private employers enact more stringent requirements, the federal law will not preempt those requirements.
Given the emerging guidance that still needs to be prepared by the various government authorities, it will be necessary for employers to pay close attention not to run afoul or be subject to penalties. In addition, employers should contact their Withers’ employment attorneys to craft appropriate policies to be disseminated to their workforce and discuss implementation in order to avoid employee relations or legal issues down the road.
In related news…
Brooke Schneider commented to various media publications on related topics, below are links to her latest media highlights.
Was quoted by HR Dive on how employers can adopt consistent policies on mask-wearing.
• “With mask, vaccine mandates on the rise, employers have options” – August 6, 2021
Spoke to Law360 about how the US government’s policy towards vaccines for federal employees might translate into the private business sphere.
• “Gov’t Vaccine Mandates Pave Way For Private Sector Policies” – July 27, 2021
Commented to HR Magazine about state vaccine-passport requirements and how they might impact employer policies.
• “Do State Bans on Vaccine Passports Impact Employer Policies?” – June 11, 2021
Quoted in HR Magazine about how employers can protect their employees’ health in the workplace as lockdown rules ease up in the US.
• “Managing Workplace Mask Requirements as Restrictions Are Lifted” – May 18, 2021