New Vaccine Mandates

Last week President Biden announced a COVID-19 Action Plan to increase the number of vaccinated Americans and end the COVID-19 pandemic. Though a lot of Plan depends upon the actions of administrative agencies, today we’ll be discussing how private employers can expect to be affected.

Vaccine and Testing Mandates for Employers with 100+ Employees

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that requires all employers with 100 or more employees to either require all employees get vaccinated or require that all unvaccinated employees get tested for COVID-19 once a week. This new rule will come in the form of an emergency temporary standard (ETS). The ETS is also expected to require paid time off for employees to get vaccinated and recover from any side effects experienced as a result of getting the vaccine. Details on what exactly is required by the ETS, which businesses are covered, and possible exemptions will be addressed by the ETS itself. Litigation over the ETS is almost guaranteed, so time will tell whether whatever rules OSHA issues will ultimately be upheld by the courts.

Mandatory Vaccination for Employees of Federal Contractors

President Biden signed an executive order which will likely require most employees of federal contractors to get vaccinated. The order requires all federal contracting agreements to contain a clause requiring the contractor (and its subcontractors) to comply with guidance put forth by the Safer Federal Workforce Task Force. The executive order also directs the Task Force to issue new guidance by September 24, 2021. This requirement will go into effect on October 15, 2021 and will apply to all new contracts, new solicitation for contracts, new extensions or renewals of contracts, and the exercise of options for existing contracts. The new guidance is expected to contain a vaccine requirement without the option for unvaccinated workers to test weekly for COVID-19. Once the Task Force issues its updated guidance, contractors will have a better idea of what exactly they must include in any new contract they enter into with the federal government that is subject to this executive order.

Mandatory Vaccination for Health Care Workers

The Centers for Medicare and Medicaid Services (CMS) will start requiring workers in most health care settings that receive Medicare or Medicaid reimbursements to get vaccinated. According to the announcement, it’s expected that the requirement will extend to hospitals, dialysis facilities, ambulatory surgical settings, and some home health agencies. Further, the requirement will affect all staff in CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who aren’t involved in direct patient, resident or client care. CMS is planning on publishing its Interim Final Rule on this topic sometime next month.

How Should We Prepare?

The million dollar question! We know that vaccine requirements are perfectly legal so long as reasonable accommodations are made for those who cannot receive the vaccine due to religious or disability-related reasons. Employers wanting to get a head start on any eventual government-imposed vaccine requirements may begin implementing their own vaccine mandates or other vaccine incentive programs. That said, employers may also refrain from taking steps to require their workforce to get vaccinated until official agency action is taken requiring them to do so, though even with federal action it is likely the courts will get involved and potentially put a halt to any required implementation. There is a lot left to occur before these new rules are effective. As always, the Thompson Coe attorneys are available to assist in making these challenging decisions.

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