Earlier, President Joe Biden announced vaccination requirements for the federal government workers but allowed them to “opt out” if they agreed to more stringent mitigation measures. He also implored private sector employers to encourage vaccination, and many employers began implementing mandatory vaccination plans or incentivizing employees to get vaccinated.

On September 9, 2021, President Biden announced a more aggressive “COVID-19 Action Plan” that the White House has dubbed a “Path out of the Pandemic.” It is a six-pronged plan that, importantly for employers, contains expansive new vaccine and testing mandates for large employers, federal employers, federal contractors, and health care workers. Here are the highlights for private-sector employers:

  • All Employers with 100+ Employees will be Required to Ensure their Workers are Vaccinated or Tested Weekly: The Department of Labor’s Occupational Safety and Health Administration (OSHA) has been instructed to develop a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. In the coming weeks, OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement.
    – This rule is projected to impact two-thirds of the country’s workforce.
    – The new rule is expected that limited exemptions will apply to workers claiming medical or religious reasons for not getting vaccinated.
    – Employers who do not comply could face heavy fines.
    – No deadline has yet been announced.
    – To improve access to rapid tests, Walmart, Amazon, and Kroger will sell at-home, rapid COVID-19 at-cost for the next three months, which the Administration projects will allow Americans to buy these tests for up to 35 percent less than current prices, starting by the end of this week. The Administration is also requiring that Medicaid cover at-home tests for free for beneficiaries and the federal government’s free testing program will be expanded to 10,000 pharmacies.
  • Employees of Federal Government Contractors and all Federal Workers will be Required to be Vaccinated: The President has signed an Executive Order requiring all federal executive branch workers to be vaccinated, subject only to exceptions required by law. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government. Guidance is to be issued by the Safer Federal Workforce Task Force within seven days.
  • Employees of Medicare and Medicaid Participating Hospitals and Other Health Care Settings will be Required to be Vaccinated: The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement.
  • Large Entertainment Venues Must Require Proof of Vaccination or Testing for Entry.
  • Employers Must Provide Paid Time Off for Employees to get Vaccinated: OSHA has been instructed to develop a rule that employers with 100+ employees provide paid time off for vaccination and post-vaccination recovery.
  • Plea for Governors of All States to Adopt Vaccine Requirements for All School Employees: The President’s plan calls for Governors to require vaccinations for teachers and school staff. Currently, nine states, as well as the District of Columbia and Puerto Rico, have vaccination requirements for K- 12 school staff, including California, Connecticut, Hawaii, Illinois, New Jersey, New Mexico, New York, Oregon, and Washington.

The GOP and at least a dozen states have announced plans to challenge the legality of the President’s orders. The Constitution gives the President powers under Article II to issue emergency orders where there is “grave danger,” and OSHA has already issued Emergency Temporary Standards on mandatory COVID vaccines for federal employees and nursing home workers. Governmental vaccine mandates (smallpox) have been upheld in the past. Also, both the DOL and OSHA have broad rulemaking powers to guarantee workers’ rights to safe and healthy working conditions. Opponents have raised arguments that the orders exceed Presidential, DOL, and OSHA authority, that the mandate is arbitrary and capricious because of the arbitrary cut-off of 100 employees, and that they usurp states’ authority to regulate public health matters.

We will update this blog as these orders make their way through the anticipated legal challenges and the emergency rulemaking process. Meanwhile, we encourage employers who are considering vaccine mandate policies to contact their Weintraub Tobin employment advisor. We can help set up legally compliant policies, exemption, and certification forms, and help train hiring managers and HR professionals on how to navigate issues such as lawful incentives (positive and negative), assessing exemption requests, proof of vaccination, and how and when to ask applicants about their vaccine status.