Path Out of the Pandemic - Implications for Employers

On September 9, 2021, the Biden Administration announced its COVID-19 Action Plan, titled the “Path Out of the Pandemic.”  The Plan’s six pillars are:

1. Vaccinating the Unvaccinated;
2. Further Protecting the Vaccinated;
3. Keeping Schools Safely Open;
4. Increasing Testing & Requiring Masking;
5. Protecting Our Economic Recovery; and
6. Improving Care for those with COVID-19.

Of particular interest to employers is the first pillar.  To “vaccinate the unvaccinated,” the Plan will have the following impact on employers:

• Require all employers with 100+ employees to ensure their workers are vaccinated or tested weekly, which will be described and implemented through a new OSHA emergency temporary standard (ETS). 

OSHA issued its first ETS in decades in June, 2021, also related to COVID-19 but applicable only to healthcare employers.  That process took nearly six months and involved over 40 stakeholder meetings, but presumably the new ETS will take less time.  See yesterday’s blog for more details. During a DOL Office of Public Engagement and OSHA remote briefing held this afternoon, OSHA acknowledged that the ETS would issue in the “coming weeks” as ordered by President Biden, but was not prepared to predict how many weeks.  OSHA also made clear that the ETS would not  reach 100% remote workers, since OSHA’s province is is workplace safety and employee exposure to hazards., but would certainly address obligations for any employee who makes an in-person appearance at work.

• Require all employers with 100+ employees to provide paid time off to get vaccinated.

OSHA will also issue, as part of its ETS, rules that will require employers to provide paid time off for the time it takes workers to get vaccinated, or to recover from vaccination.   The DOL already has guidance suggesting that mandatory testing -- and presumably vaccination -- that occurs on an employer’s premises or during work time is compensable, but it is far less clear whether an employee must today in all states be compensated for the time and expense of testing or for vaccination outside of their normal work hours, even when required by employer policy.  The Plan calls for paid time off for vaccination purposes and the ETS may provide further clarity around these questions with regard to testing time as well.

• As described in this Executive Order, require vaccinations for all federal workers (rather than requiring vaccination or weekly testing, which was previously ordered). 

The Safer Federal Workforce Task Force (“Task Force”) -- which was previously established in 2021 Executive Orders regarding mask-wearing, vaccination and testing -- will issue new guidance by September 24, 2021.

• As described in this Executive Order, extend federal worker obligations to government contractors -- affecting millions of employees who do business with the federal government. 

At this point, it appears that government contractors will be required to comply once a clause pursuant to Section 2(a) of the Executive Order is included in their contract.   The Task Force has been ordered to issue guidance by September 24th.  It is likely, but not certain, that the guidance will track the federal worker requirement of vaccination only, and will not permit a weekly testing alternative (except of course as part of a legally required accommodation).  Whatever guidance is established, it appears that before contractors may be held to the guidance, there must first be a clause obligating compliance in new contracts, solicitations, or renewals after October 15, 2021.  Because many government contracts are awarded in the fiscal 4th quarter (July through September), many contractors would not expect to see the new clause until 2022.   However, we expect the Federal Acquisition Regulatory (FAR) Council may impose a requirement to also insert the new clause in contract modifications or orders to drive the obligations through existing contracts even before renewal.  We also anticipate that the clause will be required to flow-down to subcontractors at all tiers if the subcontract is not solely for provision of products and exceeds the simplified acquisition threshold (SAT), which for most contracts (not involving disaster recovery contracts) is $250,000.   Also, it appears the rule will not be limited to contractors working at federal facilities, but is likely to be broader given that the use of the term “any workplace locations” in the Executive Order rather than “federal building or a federally controlled workplace.”  Indeed, the “any workplace locations” language could be read together with “an individual … working … in connection with” a federal “contract-like instrument” to include a wide swath of remote workers, although we will have to await the Task Force’s guidance.

• Require COVID-⁠19 vaccinations for over 17 million health care workers at Medicare and Medicaid participating hospitals and other health care settings.

This will expand required COVID-19 vaccination to workers in health care settings that receive Medicare or Medicaid reimbursement, including additional hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.  It appears designed to reach health care industry staff whether working in homes or hospital settings, including staff not involved in direct patient, resident or client care.  The Plan will  also provide additional support to hospitals battling surges in COVID-19 cases by deploying additional beds in Veteran’s Affairs facilities and additional staff by tapping into FEMA resources and DOD teams.

Also of interest to employers are other pillars of the Plan that streamline Paycheck Protection Program (PPP) loan forgiveness for small loans, and additional support for small businesses through a new SBA Community Navigator program. 

Just two days prior to the announcement of the Path Out of the Pandemic, Seyfarth released its Vaccine Playbook, available here.  We will continue to issue modified Playbook content in coming days and weeks to account for the Biden Administration’s Plan. The Playbook currently provides valuable information to employers who are considering, implementing, or will newly be required to impose vaccine mandates, particularly with respect to the challenges associated with providing reasonable accommodation to those employees who seek disability or religious exemptions from those mandates.