President Biden announced three different federal COVID-19 (coronavirus) vaccine mandates on September 9, 2021, which may potentially affect Vigilant members. Many details have yet to be released, but here’s a summary of what we know at this point:
Employers with 100 or more employees: The President is directing federal OSHA to draft an emergency temporary standard (ETS) for all employers with 100 or more employees.
Requirements: According to the White House’s Path Out of the Pandemic web page, OSHA’s new regulation will require covered employers to ensure workers who don’t provide proof of full vaccination are tested for COVID-19 at least weekly before coming to work. Covered employers will also have to provide paid time off for workers to be vaccinated or recover from any adverse effects after getting the vaccine.
Time frame: The White House didn’t announce a time frame for federal OSHA to release its new rule. There will almost certainly be a delay between the publication of the emergency rule and enforcement of the provisions. In states such as Arizona, California, Oregon, and Washington, which have their own safety and health agencies, there will be a further delay as each state decides whether to adopt federal OSHA’s language or roll out its own version of the rule. Each state’s rules must be at least as effective as federal OSHA’s rules, but they can choose to impose additional protections for workers. States typically have six months to develop their rules after a federal standard comes out, but that time frame shrinks to 30 days when OSHA issues an ETS. Federal OSHA can also approve a variance to give states more time, if needed.
Federal contractors: The President issued an executive order requiring certain federal contractors to follow new COVID-19 safety protocols.
Types of covered contracts: The executive order covers federal contracts and subcontracts for services, construction, leases of real property, and concessions, but not supplies (such as purchases of federal timber) or grants. The order also doesn’t apply to federal contracts whose value is less than or equal to the simplified acquisition threshold, which is currently $250,000.
COVID-19 safety protocols: The Safer Federal Workforce Task Force will develop guidance on COVID-19 safety protocols and submit them to the Office of Management and Budget (OMB) for approval. Presumably these protocols will include mandatory vaccination, but we won’t know the details until they’re published. The executive order places the approval process on a fast track, aiming for the task force to publish the approved guidance by September 24, 2021. Federal contractors will be required to apply the guidance to all of their employees “working on or in connection with” a covered federal contract.
Timing: The task force’s COVID-19 safety protocols will be incorporated into new federal contracts, starting as early as October 15, 2021. The protocols won’t apply to existing federal contracts unless they’re extended or renewed, or one party exercises an option on the existing contract on or after October 15, 2021. The government doesn’t have the power to change the terms of an existing contract. If you’re uncertain whether the new requirement will apply to future federal contracts, review the text of any new or modified agreements before you sign them—any applicable COVID-19 mandates will be incorporated into that text.
Onsite work at federal facilities: On July 29, 2021, President Biden announced that federal agencies must require federal contractors who work on site at federal facilities to be fully vaccinated or else submit to regular testing, wear masks, and maintain physical distancing. If your employees are physically working at federal facilities, they’re probably already being asked for proof of vaccination when they enter the facilities.
Health care employers: In response to the President’s latest directive, the Centers for Medicare & Medicaid Services (CMS) announced on September 9, 2021, that it will expand vaccination rules that were already in development for nursing homes to cover workers in most health care settings that receive reimbursements from Medicare or Medicaid.
Nursing homes: On August 18, 2021, CMS announced that it would be issuing rules requiring workers in nursing homes that receive reimbursement from Medicare or Medicaid to be vaccinated. The actual rules have yet to be released, and will likely be incorporated into the new rules for all health care settings that receive Medicare/Medicaid reimbursements.
State health care vaccine mandates: As we previously reported, California, Oregon, and Washington have already issued mandates requiring workers in certain health care settings to be vaccinated, with limited exceptions for workers who cannot get the vaccine due to a medical reason or a sincerely held religious belief. We later reported on the details of Oregon’s health care vaccination rule here.
Other federal health care rules: Federal OSHA previously issued an ETS for health care workers, which took effect on June 21, 2021. The ETS requires paid time off for workers to obtain the vaccine and recover from adverse effects, but doesn’t mandate vaccination. Information and resources are available on OSHA’s COVID-19 Healthcare ETS web page.
Tips: Vigilant will keep members informed as new rules are released, or other developments occur. We anticipate legal challenges may come into play, particularly regarding the OSHA rule for employers with 100 or more employees.
Our Vigilant Law Group employment attorneys have been fielding numerous calls from members wondering whether and how to require workers to obtain the COVID-19 vaccine. If you require workers to be vaccinated, be prepared to assess requests for disability or religious exemptions. We don’t anticipate that any of these new vaccine mandates will override your longstanding obligations under the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act (or equivalent state law) to enter into a reasonable accommodation process if an employee provides a religious or medical reason for not obtaining the vaccine. Contact your Vigilant Law Group employment attorney with any questions.