On September 9, 2021, President Biden released a new six-pronged national plan, the Path Out of the Pandemic (the “Plan”), to try and curb the spread of the COVID-19 pandemic.The Plan includes the following measures:
1. President Biden signed an Executive Order that all Executive Branch employees must be vaccinated with limited exceptions. Each federal agency shall develop an applicable mandatory vaccination program for its agency, with guidance to be issued within seven (7) days of the date of the Executive Order. Federal employees may not opt out of the vaccination requirement by being subjected to weekly COVID-19 testing;
2. President Biden also signed an additional Executive Order providing that all federal contracts must contain a clause that requires companies to comply with protocols issued by the Safer Federal Workforce Task Force (the “Task Force”). The Task Force is to develop specific guidance for federal contractors by September 24, 2021;
3. The Centers for Medicare and Medicaid Services (“CMS”) will require workers in most health care settings that receive Medicare or Medicaid reimbursement to be vaccinated against COVID-19; and
4. Pursuant to the authority of the Department of Labor’s Occupational Health and Safety Administration (“OSHA”), OSHA shall develop an Emergency Temporary Standard (“ETS”) requiring all employers with at least 100 employees to mandate that their employees be vaccinated against COVID-19 or be subject to weekly testing. Employers are also required to grant employees paid time off to get vaccinated and recover from side effects associated with the vaccine. By way of background, OSHA issued its first ETS in years on June 21, 2021, when the agency required health care facilities to abide by certain COVID-19 protocols, such as providing personal protective equipment to employees and enacting a written COVID-19 plan.
While it is unclear when the employer mandate will go into effect, OSHA is charged with enforcing any ETS and OSHA’s penalty power includes fines of up to $14,000 per violation. Open questions include which employees the mandate applies to, who will pay for weekly testing and how vaccination records are to be stored.
The mandates will be subject to exemptions for individuals who cannot receive a COVID-19 vaccine due to a disability or sincerely held religious belief.
The above measures are expected to be subject to future legal challenge.