President Biden announced a comprehensive national strategy to combat the COVID-19 pandemic on September 9, 2021, that will likely have a significant impact on federal contractors and private employers with 100 or more employees.
The new requirements
Under the President’s plan, private employers with 100 or more employees will be required to ensure that all of their employees are either fully vaccinated or receive a negative COVID-19 test on a weekly basis. This new requirement will be implemented through an emergency rule to be issued by the Occupational Safety and Health Administration (OSHA) in the coming weeks.
When this OSHA standard is issued, covered employers will be required to offer paid time off for employees to receive the vaccine and recover from any post-vaccine side effects. According to the President, companies who fail to comply with the emergency rule may face up to $14,000 in fines per violation. The new OSHA standard is likely to conflict and preempt pending efforts by some states to prohibit employers from implementing vaccine mandates. It is not clear how long it will take OSHA to issue the new rule or whether it will apply to employees who work remotely.
The President also signed a pair of executive orders mandating vaccinations for all executive branch workers and employees of federal contractors. Unlike the emergency OSHA rule, the order covering executive branch employees does not provide an option for workers to be tested for COVID-19 weekly instead of receiving a vaccine. The order covering federal contractors is less direct. Rather than specifically mandating vaccinations, it requires executive agencies and departments to include a clause in their contracts and “contract-like instruments” stating that the contractor and any subcontractors shall comply with all guidance from the Safer Federal Workforce Task Force. That guidance will be issued by September 21, 2021, and is expected to include a vaccination requirement. As written, the order suggests that the vaccination requirement will not apply to federal contractors until they sign their next federal contract or subcontract or extend any existing contract.
The Centers for Medicare & Medicaid Services (CMS) is taking similar action to require vaccination for workers in most health care settings that receive Medicare or Medicaid reimbursement.
Looking ahead
As they prepare for the release of the new OSHA standard, covered employers who have not already done so may want to consider surveying their employees to determine how many have already been vaccinated. When requesting such information, employers should avoid asking questions about the reasons employees have not been vaccinated, which may lead to the disclosure of sensitive medical information. Information about vaccination status should be handled as confidential medical information.
Employers may also want to begin considering whether they will allow unvaccinated employees to opt-out of receiving a vaccine by submitting to weekly COVID-19 testing. Although the emergency rule will permit this, we do not expect it to require that such an exception be made. As with any mandatory vaccination policy, employers covered by the ETS must also keep in mind their reasonable accommodation obligations under Title VII and the ADA.
We will continue to post updates as more information is released. If you have any questions, please feel free to call or e-mail your regular contact at Thompson Coburn.
Cliff Godiner attorney in Thompson Coburn’s Labor & Employment practice group.