President Proposes “Path Out of the Pandemic” (Benefit Minute)
On September 9, 2021, President Biden announced a comprehensive national strategy to combat COVID-19. The strategy includes a plan to vaccinate the unvaccinated, which affects private employees with 100 or more employees, federal government employees and contractors, and employees of health care entities. It also includes plans to increase COVID-19 testing. This Benefit Minute focuses on these two pieces of the Path Out of the Pandemic strategy.
Private Employers with 100 or More Employees
The plan directs the Occupational Safety and Health Administration (OSHA), the federal agency responsible for ensuring safe and healthy working conditions for workers, to develop a COVID vaccine Emergency Temporary Standard (ETS). The ETS will require all employers with 100 or more employees to ensure that all members of their workforce are either vaccinated or subjected to weekly COVID testing before coming to work. These employers will also be required to allow employees to use existing paid time off or to provide paid time off to get vaccinated and recover from vaccine side effects. The vaccine mandate likely will not apply to remote employees who do not come to the workplace.
The ETS can remain in effect for a maximum of six months. Employers that violate the ETS can be subject to OSHA penalties of up to $14,000 per violation. In states where the federal government does not have jurisdiction over workplace safety (including Maryland), the state workplace safety agencies will have to adopt the ETS or just-as-effective measures within 15 to 30 days.
While the effective date is uncertain and legal challenges to the ETS are likely, employers should still begin preparing for the mandate now by determining how proof of vaccination will be collected and maintained and how weekly testing will be performed. OSHA guidance will likely address whether the employer will bear responsibility for the cost of COVID testing.
Health Care Workers
The plan directs the Centers for Medicare and Medicaid Services (CMS) to require COVID vaccines for most employees in health care settings as a condition of receiving federal funds. The requirement, which applies to hospitals, dialysis facilities, ambulatory surgical settings and home health agencies, expands on CMS’ August 18th announcement regarding vaccinations for nursing home staff. CMS has said it is developing a mandate-related interim final rule with a comment period that will be issued in October.
Some hospitals have expressed concern that the vaccine mandate will lead to potential staffing shortages (especially in rural areas) as certain health care workers have resisted getting vaccinated.
Executive Branch Federal Employees
Pursuant to an Executive Order, the Safer Federal Workforce Task Force has established November 22, 2021 as the date by which all federal employees in the Executive Branch need to be fully vaccinated. No testing option will be available. Employees who telework or work remotely are not excused from this requirement because employees working offsite may interact with the public as part of their duties and agencies may need to recall these employees.
In addition, the agencies are strongly encouraged to require vaccinations for any employees or other personnel working under an agreement with an agency not covered by the Executive Order, consistent with applicable law and in consultation with the Safer Federal Workforce Task Force. If an individual continues to refuse to be vaccinated or to provide proof of vaccination, the agency should pursue disciplinary measures, up to and including removal from federal service. A reasonable accommodation will be provided to employees who communicate to the agency that they are not vaccinated against COVID because of a disability or a sincerely held religious belief, practice, or observance. The mandate does not apply to the judicial or legislative branches of the federal government.
Pursuant to a second Executive Order, the Safer Federal Workforce Task Force is requiring covered contractors and subcontractors to ensure that covered employees are fully vaccinated for COVID by December 8, 2021, except for legally required disability and religious exemptions. The mandate extends broadly to include human resources, billing, and legal personnel who perform work “in connection with” covered contracts, and to all other employees working in the same location. Remote employees working on a covered contract are also subject to the mandate. Covered contractor employees must present documentary proof of vaccination which may include a digital copy of a vaccination card.
The vaccine requirement will apply on or after October 15, 2021 only to new contracts, solicitations, contract extensions and renewals, and options exercised under existing contacts. However, the guidance states that agencies are strongly encouraged to incorporate the vaccination protocols into existing contracts to the extent consistent with law. The guidance also strongly encourages agencies to apply the requirements to certain contracts that are not covered by the Executive Order.
Expanded Access to Testing
The plan also outlines multiple initiatives designed to increase COVID-19 testing availability and make it more affordable. The plan calls for a federal government investment of nearly $2 billion for the procurement of rapid point-of-care and over-the-counter at-home COVID tests. Several retailers (including Amazon, Walmart and Kroger) will sell at-home, rapid COVID tests at cost to consumers for the next three months. Medicaid must also cover in full the cost of testing for beneficiaries.
Easy access to testing will be important as employers implement OSHA’s mandate and manage unvaccinated employees.