September 10, 2021

On September 9, 2021 President Biden announced the “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan.” The plan provides six broad focus areas each with its own detailed requirements and directives:

• 1 | Vaccinating the Unvaccinated
• 2 | Furthering Protection for the Vaccinated
• 3 | Keeping School Safely Open
• 4 | Increasing Testing and Requiring Masking
• 5 | Protecting Our Economic Recovery
• 6 | Improving Care for Those with COVID-19

Requirements for Large Employers

For employers with over 100 employees, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OHSA) will be issuing emergency rules requiring adoption of significant COVID-19 vaccine-related programs. Various news sources have reported substantial potential penalties of up to nearly $14,000 per violation against employers for noncompliance. OHSA’s rules are expected to:

• Require employers to ensure employees are fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis.
• Require employers to provide paid time off to employees for getting vaccinated and for recovery time needed to manage side effects.

Although the White House’s published materials provide an overview, many details remain unclear and will require guidance from OSHA. Certain matters we would expect in the anticipated rulemaking, but we are also ready to engage with the Administration to seek additional guidance as needed. Among other issues, we expect employers will need guidance regarding:

• Which workers are counted for determining the 100-employee threshold;
• How much paid time off must be provided;
• Treatment of part-time employees;
• Whether the paid time off applies only to the employee’s own vaccination;
• Interactions with existing state and local paid vaccination leave rules;
• How employers will enforce vaccination/testing rules for remote workers;
• Whether unvaccinated employees can be required to pay for the weekly COVID-19 testing;
• Employee documentation requirements to prove vaccination and weekly testing status; and
• An employer’s government reporting burden and detailed compliance standards.

Requirements for Employers that are Health Care Providers/Facilities

The Centers for Medicare & Medicaid Services (CMS) will require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement. These requirements will be issued by CMS and are expected to cover a broad majority of the health care facilities and workers across the country.

Requirements for Federal Employees and Federal Government Contractors

The President also signed two Executive Orders firming up the federal government’s requirements for its own workers and federal contractors. The Orders generally provide that all Federal Executive Branch employees and the employees of all federal contractors be vaccinated in order to continue their employment or work for the government. The Safer Federal Workforce Task Force is required to issue guidance by September 24 with additional details for federal contractors. There appear to be relatively few exceptions to these new requirements, and amendments to existing and new contracts are likely, so federal contractors will want to review the Order in detail with their legal advisors.

Availability of COVID-19 Vaccine Boosters

The Administration intends to make boosters immediately and widely available as soon as approved by the Food and Drug Administration (FDA). It is unclear from yesterday’s announcement whether booster shots will be an element of the vaccine requirements described above. However, given the Biden Administration’s robust push in this plan, it appears to be a strong possibility that the OSHA, CMS, or Executive Order requirements may ultimately extend to any approved boosters.

Increased Testing Requirements and Potential Employer Impacts

The plan requires or recommends enhanced testing and masking in various circumstances, including for school age children. The Administration has also undertaken increased test production and distribution initiatives with an aim to providing enhanced free or reduced cost tests. Although not directly applicable to most employers, the enhanced availability and affordability may help certain employers meet the “Vaccinate or Test” requirements expected from OSHA.

Employers should also be aware that employees with school age children may seek tests in order to help ensure their child can return to or stay at in-person school. The availability of free or low-cost tests should help employees with this, but there may be workplace scheduling disruptions to facilitate testing.

What's Next?

The Business Group will continue to monitor future developments as rules are issued and further guidance is provided – in particular from OSHA and CMS. Please feel free to contact the Policy or Membership team at the Business Group if you have any questions.

We provide this material for informational purposes only; it is not a substitute for legal advice.

More Topics

Articles & Guides COVID-19 Plan Design & Administration