Biden’s and OSHA’s Vaccine Mandate for Employers

This article was updated on 9/24/21.

On September 9, 2021, President Biden announced a new six-point action plan to fight the COVID-19 pandemic. The action plan is comprehensive, so we’re focusing on employers and what you need to know right now, although more information is expected to come from OSHA soon. These orders will impact federal workers, employers of 100 or more workers, and some healthcare workers.

Large, Private Employer Vaccine Mandate Coming from OSHA

President Biden has directed the Department of Labor’s OSHA to issue a vaccine-related standard. The federal agency will publish an emergency temporary standard (ETS) requiring all private employers with 100 or more workers to ensure their workforce is fully vaccinated or implement weekly COVID-19 testing for all unvaccinated workers. Employers will also have to give employees paid time off to receive their vaccination or because of side effects experienced from a vaccination.

Employers that don’t comply with the standard may receive fines of up to $14,000 for each violation.

The timing of the ETS is unknown. There is speculation it will take less time than the last COVID-19 ETS, which took the agency six months to draft, publish, and take effect. Until it’s published and further details are provided, potentially impacted employers should consider the following:

Who needs to be involved in making decisions on how to comply with a vaccine ETS? How will you communicate any changes to your employees?
Have you reviewed your current vaccine-related and COVID-19 testing policies and procedures?
How will you track testing and vaccination status among your employees? If it involves medical information, who will handle that private information? How will you keep it confidential?
Do you have a budget set aside for testing employees?
How will you provide paid time off for vaccination and any related side effects of the vaccination?
Does your accommodation policy cover employee vaccine exemption requests based on religion and disability?
Are your vaccination policies compliant with Americans with Disabilities Act requirements?
Have you secured reputable legal counsel?

Once the ETS is published in the Federal Register, the Secretary of Labor has six months from the date of publication to issue a permanent standard.

We’ll continue to monitor this issue and update this section with more details when OSHA makes it available.

Vaccine Mandate for Federal Works and Federal Contractors

President Biden also signed an Executive Order to mandate vaccinations for all federal employees and federal contractors without an option for COVID-19 testing. These individuals have 75 days from the date the order was signed (September 9, 2021) to comply. There are exemptions for workers with disabilities and certain religious beliefs. If an exemption isn’t filed and a worker isn’t vaccinated by the compliance date, they will be terminated from employment.

Consistent with federal guidance, masks and social distancing requirements will still be enforced in federal buildings, on federal lands, military bases, and overseas locations.

Update 9/24/21:

On September 24, 2021, the Safer Federal Workforce Task Force issued Federal Contractor Vaccine Guidance regarding employee vaccinations. The Guidance reinforces the broad mandate that President Biden issued in his 6-point action plan. The COVID-19 vaccine is required for all employees who work for a covered contractor, even if the employee doesn’t work on a government contract or if their work on a covered contract is administrative (e.g., billing, legal, human resources).

Timing

The deadline for federal contractors to be fully vaccinated has been extended to December 8, from the original date of November 22, 2021. After December 8, employees must be fully vaccinated by the first day of the performance period for new contracts, on an exercised option, or an extended or renewed contract. An agency head may approve of an extension, but it can’t extend beyond 60 days of the start of a covered contract or covered workplace.

Who Needs the Vaccine?

All full-time and part-time employees who work on or in connection with a covered contract or covered contractor workplace. This requirement includes all remote employees who work on or in connection with a covered contract. The COVID-19 vaccine is required except if the employee is legally entitled to an accommodation.

Employees must show or provide their vaccination record.

Other Guidance Requirements

All employees and visitors must still maintain indoor masking requirements when on covered contractor workplaces in high or substantial community transmission areas. People who aren’t fully vaccinated must wear masks indoors and in some outdoor settings, regardless of transmission rates.
Fully vaccinated workers don’t need to wear masks indoors if they’re located in an area that has low or moderate community transmission rates.
Fully vaccinated workers don’t need to physically distance, regardless of community transmission rates.
Contractors must have an assigned person or team that coordinates workplace safety at the contractor’s workplace.
Any unvaccinated contractor employees must show proof of a negative COVID-19 test that was taken within the last three days before entering a federal building.

Subcontractors must include a contractual clause that requires adherence to all safety protocols from the Task Force. Contractors must include the clause in their first-tier subcontracts. There isn’t a requirement for subcontractors to verify their employees’ vaccine status.

Additional Resources:

Safer Federal Workforce FAQs

Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors Issued September 24, 2021

Healthcare Staff Receiving Medicare or Medicaid Reimbursement Must Vaccinate

Healthcare workers in settings that receive Medicare and Medicaid reimbursement must receive vaccinations. These settings include hospitals, dialysis centers, ambulatory surgery settings, and home health agencies.

This order builds on a previous requirement from the Centers for Medicare and Medicaid for nursing facilities. It will impact nursing home workers, hospital staff, and include clinical staff, volunteers, residents, and individuals not directly involved in patient care.

Additional requirements were issued for entertainment venues mandating event attendees show proof of vaccination or undergo COVID-19 testing in order to enter the venue. Another order states that anyone using public transportation must wear a mask or receive a double fine. Additionally, in the next three months, retailers must start offering home test COVID-19 kits.

Following approval and a rollout schedule from the Food and Drug Administration and the Centers for Disease Control and Prevention, booster shots are expected to become available sometime this fall. It is anticipated that boosters will first be made available to those individuals who first received their vaccinations in the beginning of 2021.