On Thursday, September 9, 2021, President Biden issued a memorandum, “Path Out of the Pandemic” (the Memo), announcing a six-pronged national strategy to combat COVID-19. Among other things, President Biden has ordered the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop and issue an Emergency Temporary Standard (ETS) to require all employers with 100 or more employees to ensure that their workers are vaccinated against COVID-19 or to require them to submit to weekly testing before coming to work. This emergency rule is estimated to impact over 80 million workers in private business sector businesses. Employers with 100 or more employees will also be required to provide paid time off to employees to get vaccinated and to recover from any side-effects. Businesses who violate these requirements may be subject to a $14,000 penalty per violation. The ETS is expected in the coming weeks and will be effective shortly thereafter.
Executive Order relating to federal contractors
Biden also signed an executive order specifically aimed at federal contractors. The requirement to be vaccinated, with no option to be tested instead, applies to “any workplace locations in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.” Unlike the previous EO addressing federal contractors, the scope does not appear to be limited to only those employees working at government sites. The requirement applies only to new government contracts or extensions or renewals of existing contracts entered into or renewed/extended on or after October 15, 2021. There are also certain types of federal contracts that are excluded from the EO (e.g., subcontracts solely for the provision of products). The EO directs the Safer Federal Workforce Task Force to provide further guidance on the requirements for federal contractors by September 24, 2021.
Vaccination requirements for health care providers
The Memo also states that the Centers for Medicare & Medicaid Services (CMS) are taking steps to require vaccinations for workers in health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. The CMS requirements will mandate vaccines for over 17 million health care workers across the country.
Other issues in the memo
The Memo also calls on large entertainment venues to require proof of vaccination for entry, expands accessible and free COVID-19 testing, requires masking for interstate travel on public transportation, doubles fines for mask violations, increases economic incentives and protections for small businesses, increases support for COVID-burdened hospitals, and addresses booster shots for eligible Americans, anticipated to begin around the week of September 20, 2021.
The Reed Smith team will continue to monitor these developments and provide updates pending the issuance of OSHA’s emergency rules. If you have any questions or require assistance with any employment related matters, please contact your Reed Smith employment attorney.