Mandating Vaccination Mandates? What Biden’s COVID-19 Action Plan Means for Employers

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On September 9, 2021, President Biden issued COVID-19 Action Plan that, among other things, (1) directs the Occupational Safety and Health Administration to issue an Emergency Temporary Standard requiring employers with 100+ employees to mandate vaccinations or weekly testing for their workforce; (2) requires those larger employers to provide paid time off to get vaccinated and recover from any adverse effects; (3) mandates COVID-19 vaccinations without a testing option for federal employees and contractors; and (4) requires healthcare employers to ensure their employees are fully vaccinated in order to receive Medicare or Medicaid reimbursements.

New DOL Vaccination-or-Test Rule for Larger Employers. A new action being taken by President Biden is to have OSHA issue an Emergency Temporary Standard (ETS) that employers with 100 or more employees must require either vaccination or weekly testing. We will need to wait to see how quickly such an ETS can be issued, as well as the details of how it will be implemented. We would also expect such an ETS to face legal challenges.

Such an ETS would raise issues for employers that we hope the DOL will address – such as whether employers will be required to pay for time that the employees spend getting a test. The DOL has issued COVID-19 guidance under the Fair Labor Standards Act stating as follows:

7. If my employer requires COVID-19 testing during the workday, do I need to be paid for the time spent undergoing the testing?

Yes, under the FLSA, your employer is required to pay you for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours.  Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.

8. My employer is requiring me to undergo COVID-19 testing on my day off before I can return to the jobsite. Do I need to be paid for the time spent undergoing the testing?

It depends, under the FLSA, your employer is required to pay you for all hours that you work, including for time on your vacation day if the task you are required to perform is necessary for the work you are paid to do.  For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic.  For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic.  Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.

So the standard articulated by the DOL is whether “the testing is necessary for [the employee] to perform their jobs safely and effectively during the pandemic.” It is unclear, however, how this applies to a testing mandate imposed by the DOL on all employees of the employers subject to the ETS.

As for the costs of testing, another part of the President’s Action Plan will expand the HHS free testing program at 10,000 pharmacies across the nation. To the extent that such free testing is not available, however, many states’ laws, but not all, may require employers to pay for required medical tests.

Mandatory Paid Vaccine Leave. OSHA’s ETS will also require these employers with 100+ employees to provide paid leave to get vaccinated and to recover from the vaccine. While employers with fewer than 500 employees may choose to do so – and receive a tax credit for the cost of the leave – through September 30, 2021 under the American Relief Plan Act (as we discussed here), this ETS would make such leave mandatory for many of those employers, as well as those with 500+ employees. It is likely that employers may use existing paid leave (such as paid time off (PTO), vacation, or sick) towards that obligation, but the details are not yet available.

Federal Contractors. At the end of July 2021, the President had announced certain actions to increase vaccinations, including requiring federal employees and on-site employees of federal contractors to be vaccinated or, if not, to engage in additional protective measures: undergo weekly or twice-weekly testing, wear a mask, observe social distancing, and be subject to restrictions on official travel. The President had also requested his team to apply similar standards to all federal contractor employees, not just those on-site.

In the Action Plan, President Biden has now eliminated the testing option and announced that he is requiring vaccines for the employees generally of federal contractors and subcontractors, not just on-site employees. However, the mandate does not automatically apply to all federal contractors and subcontractors.

Specifically, President Biden’s new Executive Order requires agencies, beginning October 15, 2021, to include a clause in certain new, extended or renewed contracts and contract-like instruments (hereafter referred to collectively as “contracts”) that requires contractors and subcontractors “to comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Such guidance, which must be approved by the Director of the Office of Management and Budget and published by September 24, will include the vaccine mandate.

The covered contracts include: procurement contracts for services, construction or a leasehold interest in real property; contracts for services covered by the Service Contract Act; contracts for concessions; and contracts offering services in connection with Federal property or lands. It does not apply to contracts for products only, contracts whose value is equal to or less than the Simplified Acquisition Threshold (currently $250,000), or grants, among other arrangements.

As for existing contracts, the EO states that “agencies are strongly encouraged” to ensure safety protocols are consistent with the above-referenced guidance. At a minimum, however, the existing requirement for on-site employees to be vaccinated or subject to the additional safety protocols should continue.

The prior iteration of the federal Agency Model Safety Principles issued by the Safer Federal Workforce Task Force recognized the possibility of exemptions for disability or religious needs, typically by complying with the option of additional protective protocols, but also considering case-by-case accommodations, absent an undue hardship, for those also unable to comply with those. This approach will likely continue.

Similar to the last time, federal contractors should expect communications from their contracting agencies that describe the new requirements. Certainly for any contracts that are entered into, renewed or extended on or after October 15, 2021, they will need to take steps to ensure that their employees are fully vaccinated, likely subject to possible religious or disability exemptions.

Healthcare Employers. President Biden is making the receipt of Medicare and Medicaid reimbursements contingent upon the full vaccination of healthcare employers’ workforce. The healthcare entities covered by this requirement will include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The employees covered will include clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.

This follows his earlier August 18, 2021 action requiring nursing homes to ensure their staff are fully vaccinated as a condition of participation in Medicare and Medicaid programs. The Centers for Medicare & Medicaid Services will draft the rule to implement the nursing home mandate, which the Department of Health and Human Services expects to issue as early as this month. We would anticipate the rule for other healthcare employers to align closely with that rule. Again, such rules may be subject to legal challenge.

Many healthcare employers have already imposed vaccine-or-test or strict vaccine mandates, either in compliance with state governmental orders or on their own initiative. This action, if it takes effect, would force all healthcare employers to implement vaccine mandates, subject to religious and disability exemptions that do not pose an undue hardship.

One potential outcome of this action may actually be a partial easing of the staffing shortage experienced by some healthcare employers whose employees have quit and sought jobs with employers without vaccine mandates. If all healthcare employers must impose a vaccine mandate, employees will no longer have that choice. While some may choose to abandon employment in the healthcare industry altogether, there will likely be some who will choose to get the vaccine, albeit reluctantly, in order to remain employed.

This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-lerts on any significant developments. You may also wish to check our continually-updated FAQs frequently.