September 10, 2021
On September 9, 2021, the Biden administration announced its Path Out of the Pandemic initiative, a comprehensive six-pronged plan intended to curb the still-surging Covid-19 pandemic. President Biden’s plan includes some sweeping new requirements for employers pertaining to Covid-19 vaccine mandates and workforce testing, including substantial penalties (up to $14,000 per incident) for non-compliance. Following these announcements, the questions of the day from employers are (1) do the newly announced requirements apply to my business?; and (2) how long do I have to comply? In addressing these questions, it is helpful to first take a step back and understand what actually has happened to date.
First, Biden signed two executive orders (“EOs”), (EO #1, EO #2), both of which go into effect immediately, requiring the federal government and many federal contractors and subcontractors (with covered status depending on the nature of the contract) to enact vaccine mandates for their workforces. Such mandates would be subject to exemptions for employees with legitimate medical or religious objections pursuant to the ADA and/or Title VII. The President oversees the executive branch and so has authority to make those workplace rules for federal employees and contractors, without further process. One of the EOs applies to federal contractors and subcontractors, so private employers who have this status are impacted immediately by this EO. The EO requires a vaccination mandate, period, and does not permit a testing alternative (except possibly as accommodation for those with medical or religious objections). The EO is the only aspect of what happened on September 9 that has immediate force of law and requires immediate compliance by covered employers. If you are not sure whether you are covered by the EO (i.e., whether you are a covered federal contractor or subcontractor), you need to find out.
Biden also directed the Occupational Health and Safety Administration (“OSHA”) to issue an Emergency Temporary Standard (ETS). This ETS would require all private employers with 100 or more employees to ensure that all of their employees are fully vaccinated or produce a negative COVID-19 test weekly, and would require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination. This aspect of the Path Out of the Pandemic initiative is obviously a very big deal, as it represents a significant new set of obligations with a very broad impact, covering thousands of businesses and millions of workers across the country. However, employers should keep in mind that President Biden’s statements directing an ETS are not the law. The ETS itself, which would carry the force of law once issued, does not yet exist. There is language in the plan issued by the White House which offers a few clues about what the ETS will look like, including mentioning some possibly quite steep penalties for non-compliance, but, at the moment, the details of implementation and enforcement are cloudy. For instance, right now, we do not know: (1) which employees count towards the 100 employees; (2) whether employees who telework exclusively will be subject to the mandates; (3) whether employers or unvaccinated employees must pay for Covid tests; (4) whether off-duty testing count will count as paid work time; (5) how long employers will have to comply with the mandates. The forthcoming ETS hopefully will address these issues.
The next step will be for OSHA to issue the ETS. There currently is no timeframe for when this will happen, although a fairly expedited process seems likely, given that OSHA is only authorized to issue these kinds of emergency standards, not subject to the usual notice and rulemaking processes, because of exigent circumstances. But employers watching these developments must also keep in mind that Biden’s proposal is controversial, and it is quite likely the ETS will be challenged in the courts, on the grounds that it is unconstitutional or exceeding the scope of OSHA’s authority as delegated by Congress under the OSH statute. Depending on how such claims fare, injunctions may be issued delaying implementation of the ETS. Those challenges may need to play out before the ETS (or some version of it) goes into effect. The timeline on the resolution of any such challenges is yet another unknown factor.
Finally, President Biden also directed the Centers for Medicare & Medicaid Services (CMS) to take action to require COVID-19 vaccination for workers in most health care settings that receive Medicare or Medicaid reimbursement as a condition of Medicare/Medicaid reimbursement (similar to what was previously announced by the President in August 2021 for nursing homes). There does not appear to be a Covid testing alternative here; it looks like whatever rules are issued pertaining to health care settings will include a vaccine mandate only. Any such mandate would be subject to ADA and Title VII objections and an interactive process to determine accommodations. Again, President Biden’s statements on these issues do not have the force of law. We will need to see what the CMS issues, in order to determine the precise compliance requirements for this aspect of the Path Out of the Pandemic plan. While the CMS issued a press release yesterday urging Medicare and Medicaid-certified facilities to “make efforts now to get health care staff vaccinated,” the agency stated that it is still developing an Interim Final Rule with Comment Period that will be issued in October. It is unclear how the forthcoming rules for health care providers will fit in with OSHA’s current COVID-19 Healthcare ETS, in 29 C.F.R. 1910 Subpart U, or impact OSHA’s current guidance for non-healthcare employers.[1]
BOTTOM LINE
Other than with respect to federal contractors and subcontractors, the recent announcements from the Biden administration do not establish any immediate compliance requirements for health care employers, or any private sector employers. Many questions regarding the implementation of these new rules, including, when they will go into effect, remain unanswered. Employers should review their current pandemic policies with an eye towards vaccine and testing mandates in the near future, continue to monitor developments, and confer with experienced employment law counsel to ensure ongoing compliance as the situation evolves.
[1] In addition, it should be noted that 27 states have OSHA-approved State Plans, and those states will need to determine the impact of the ETS, once it is issued, and whether certain provisions require implementation alongside the state’s standards and regulations.
