On September 9, 2021, President Biden announced his six-pronged COVID-19 Action Plan, which will have a significant impact on employers across the country by mandating vaccinations for many employees. Many key details — including what exemptions may apply to mandatory vaccinations — remain unknown until additional federal guidance is provided in the upcoming weeks.”
First, President Biden issued two executive orders aimed to increase vaccination rates among federal employees and certain federal government contractor employees. The first executive order requires all executive branch federal employees to be vaccinated against COVID-19. The second executive order requires certain government contractors to comply with forthcoming guidance to be issued by the Safer Federal Workforce Task Force (Task Force) establishing COVID-19 safety protocols. In his remarks announcing the orders, President Biden explained that the Task Force guidance will extend the vaccination requirement for federal employees to government contractors’ employees, echoing his previous statement that “if you want to do business with the federal government, vaccinate your workforce.”
Second, President Biden also announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing an emergency rule requiring employers with 100 or more employees to ensure that their employees are vaccinated or require unvaccinated employees to submit to weekly COVID-19 testing. OSHA will also require employers with 100 or more employees to provide paid time off for the time it takes for employees to get vaccinated.
Third, President Biden expands upon the vaccination requirement for nursing facilities recently announced by Centers for Medicare & Medicaid Services (CMS) which will require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. This action will apply to clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident or client care.
President Biden’s Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees orders federal agencies to require COVID-19 vaccination for all of their employees, with limited exceptions only as required by law. This order goes further than the requirements the Biden administration announced in July directed at federal employees and onsite federal contractor employees. As previously reported, those requirements provided an exception for unvaccinated federal employees so long as they wore a mask at work and submitted to weekly testing. But this most recent executive order does not provide for a similar exception.
Government Contractor Employees
President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors requires certain government contracts and contract-like instruments to include a clause that the contractor and any subcontractor (at any tier) must incorporate into lower-tier subcontracts. The clause requires the contractor or subcontractor to comply with all guidance, which is scheduled to be published by the Task Force by September 24, 2021. Akin to prior executive orders mandating enhanced minimum wage and paid sick leave for certain federal employees, this order is applicable to only limited new contracts and to workplace locations specified by the Task Force “in which an individual is working on or in connection with” such contracts.
First, the order applies only to:
- procurement contracts for services, construction, or a leasehold interest in real property
- contracts for services covered by the Service Contract Act
- contracts for concessions
- contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public
The order does not apply to (1) grants, (2) contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act, (3) contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold ($250,000 for most contracts), (4) employees who perform work outside the United States or (5) subcontracts solely for the provision of products.
Second, the order applies only to applicable federal contracts entered on or after October 15, 2021, including new contracts, new solicitations, extensions or renewals of existing contracts and exercises of options on existing contracts. If a solicitation has been issued before October 15, 2021, and a contract is entered into within 30 days of October 15, agencies are strongly encouraged — but not required — to ensure that the safety protocols are included in the new contract. If the contract is subsequently extended or renewed, the safety protocols must apply. Similarly, for contracts entered into, and solicitations issued, between September 9 (the date of the order) and October 15, agencies are strongly encouraged to ensure that the safety protocols required under the contracts are consistent with the Task Force’s guidance.
The order’s language fails to provide information about much of the scope of the mandate — including the actual vaccine requirements — leaving the details to the upcoming Task Force’s guidance. According to the order, the guidance will include definitions of relevant terms, explanations of required protocols to comply with workplace safety guidance, and describe any exceptions that apply to contractor and subcontractor workplace locations and individuals.
Employers With 100+ Employees
As noted above, President Biden also announced that OSHA is developing a rule requiring companies with 100 or more employees to ensure that their staff is fully vaccinated or tested weekly. Employees who are not vaccinated will have to show proof of a negative virus test at least once per week before reporting to work. The White House estimates that this requirement will impact over 80 million workers.
OSHA is also developing a rule requiring employers with 100 or more employees to give employees paid time off for the time it takes to get vaccinated and recover from the vaccination’s side effects.
OSHA will issue an Emergency Temporary Standard (ETS) in the coming weeks to implement each of these requirements and provide additional details. Employers that fail to comply will face citations and potential penalties of up to $14,000 per violation. OSHA previously issued an Emergency Temporary Standard in June — its first in 38 years — requiring certain healthcare facilities to implement COVID-19 safety protocols. Certain groups, including the Republican National Committee, have already indicated that they intend to challenge the mandate once it goes into effect.
Health Care Workers
President Biden will also require staff at all Medicare and Medicaid-certified facilities to be vaccinated against COVID-19. CMS and the Centers for Disease Control and Prevention are expanding emergency regulations requiring vaccinations for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings and home health agencies as a condition for participating in the Medicare and Medicaid programs. To implement this requirement, CMS will issue an interim final rule in October with a comment period. The Biden administration expects that the requirement will impact 17 million healthcare workers.
If you have any questions about these matters, please contact one of the Faegre Drinker professionals below or any member of Faegre Drinker’s OFCCP Compliance team for further details.