On September 9th President Biden outlined his multi-prong plan to combat the COVID-19 epidemic.
Most significantly to employers, the President directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees require that employees either be fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis. Then ETS will include language requiring employers to provide paid time off for employees to be vaccinated or recover from being vaccinated. It is unclear whether or not the ETS will contain a similar mandate for employees to obtain a COVID-19 test. Under some circumstances, an ETS can become effective immediately upon publication.
The President will issue a new Executive Order requiring certain government contractors to comply with guidance that will be published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance) later this month. We expect the guidance to require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on a federal site.
The President also indicated that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccinations for workers in most health care settings as a condition to continue to receive Medicare/Medicaid reimbursement.
It is a certainty that the new ETS and guidance will face judicial challenges to their enforcement, not the least of which will address OSHA’s authority to penalize employers for failing to require their employees to be vaccinated or tested.
Employer take away:
It is apparent that a great many details of the President’s plan will need to be fleshed out in the yet-to-be-published ETS and guidance. While it would be a good idea for employers to determine if the new mandates are likely to apply to them and to start to consider how they are going to implement policies to comply, Employers do not have to take any immediate action.