Yesterday, President Biden announced that he is entering two Executive Orders requiring COVID-19 vaccines for federal workers and contractors and that administrative agencies (the Centers for Medicare and Medicaid Services (CMS) and the Occupational Safety and Health Administration) will be issuing requirements establishing vaccine protocols for large employers and healthcare providers. President Biden expressed his frustration with the loss of momentum in citizens getting vaccinated and stated that “our patience is wearing thin.” The new mandates may affect around 100 million U.S. workers.
OSHA to Enforce Mandate Against Large Employers
The president has asked OSHA to put out an Emergency Temporary Standard (ETS) that will cover any business that has 100 or more employees. The ETS is expected to require those employers to verify that their workers are vaccinated before coming to work. Employees who do not get vaccinated would have to provide a weekly negative COVID-19 test to be allowed to remain in the workplace. The standard will also require the large employers to provide paid time off for workers to get vaccinated or to recover from any side effects from the vaccine. No deadline for this requirement has been released yet.
The new vaccination mandate does not negate employers’ obligation under both Title VII and the ADA to entertain employee objections to vaccinations based on religious belief or a medical condition. Employers should continue to follow the practice of an interactive process if an employee lodges such an objection.
Federal Contractors and Federal Workers
The new vaccination mandate builds upon the administration’s July announcement regarding federal workers. This new mandate requires that all federal executive branch workers be vaccinated (they do not have the weekly testing option). This would cover many agencies, including the Department of Defense, the Department of Veterans Affairs, and the USDA, just to name a few. If federal workers chooses not to be vaccinated and does not meet either the religious exemption under Title VII or the medical condition exemption under the ADA, they may be subject to progressive discipline, including termination. This requirement was also extended to federal contractors and may not simply apply to those contractor employees who appear on federal property. The president’s Executive Order requires further guidance about this prong to be issued in seven days.
Following past requirements for nursing home facilities, CMS will require vaccinations for workers in most healthcare settings. If a hospital, clinic or other medical services provider receives reimbursements from Medicare or Medicaid, they are likely covered by this new vaccination requirement. Like the federal workers and contractors, there is no weekly testing alternative. Curiously, the CMS requirement for nursing home facilities was announced in mid-August but CMS has not yet issued a rule.
What Does This Mean and When Does It Start?
The White House plan did not include many hard deadlines. We will have to wait to see when OSHA issues its Emergency Temporary Standard on the rule for large employers. The guidance for federal workers and contractors is supposed to be issued within a week. For healthcare providers, it is unknown when CMS will issue its standard.
Despite the unclear deadlines, it is probably smart for covered employers to go ahead and start talking with your employees about this upcoming mandate. Many large national employers have already implemented some sort of mandatory vaccination program. As with everything these days, it is likely that there will be some sort of challenge to this mandate, but there will not be any legal decision soon.