Mandatory Vaccinations and Other Workplace Changes

As we leave the dog days of summer behind and head into fall, we remain in the midst of the COVID-19 pandemic. This past week, Idaho implemented crisis standards of care in two health districts. A few days ago, on September 9, 2021, President Biden announced a six-part national plan to address the continuing pandemic. Mandatory vaccinations are a key part of the plan.

How does the President propose to vaccinate approximately 80 million unvaccinated, and even reluctant if not unwilling, Americans? The answer is by focusing on American workplaces. Thus, it is important for employers to become familiar with the new six-part plan and to begin thinking about adopting new employment policies in instances where changes will be required for regulatory compliance.

To help employers get started, this article summarizes mandatory vaccination and other requirements of the new six-part plan. For more detail, you can find a written transcript of the President’s speech last Thursday at Remarks by President Biden on Fighting the COVID-19 Pandemic | The White House (the “Remarks”). The President’s action plan is explained in the Path Out of the Pandemic, President Biden’s COVID-19 Action Plan, at President Biden's COVID-19 Plan | The White House (the “Action Plan”).

A Major Shift In American Workforce Policy

Prior COVID-19 standards and guidance issued by the federal Occupational Safety and Health Administration (OSHA) prioritized workplace protections for unvaccinated workers. But in his speech last week, the President harshly criticized “pandemic politics” by a minority of Americans and elected officials as “stand[ing] in the way of protecting the large majority of Americans who have done their part and want to get back to life as normal.” As the President put it last week: “The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers.” 

President Biden’s message signals a significant shift in federal public policy, by focusing new federal efforts on protecting vaccinated Americans from unvaccinated Americans.

Mandatory Vaccinations

The President’s new plan mandates vaccinations in four workplace circumstances, as follows:

              Employers with 100 or More Workers: OSHA will issue a new Emergency Temporary Standard (ETS) for the private business sector.[1] Employers with 100 or more workers will need to ensure either that their workforces are fully vaccinated or that their unvaccinated employees show a negative COVID-19 test at least once a week. Also, employers will have to give workers paid time off to get vaccinated and to recover from any side effects of vaccinations.

              Federal Workplaces: The plan requires vaccination of federal employees, with no opt-out alternative for weekly testing. President Biden signed an Executive Order on September 9, 2021, which requires federal agencies to implement programs for COVID-19 vaccination of all federal employees, with exceptions only as required by law. The federal “Safer Federal Workforce Task Force” is expected to issue new guidance this next week.

              Federal Contracts: In his Remarks, President Biden stated plainly: “If you want to do business with the federal government, vaccinate your workforce.” The President signed an Executive Order on September 9, 2021, which will require many federal contractors and subcontractors to comply with COVID-19 workplace safety guidance. The federal guidance will apply to new federal contracts, contract-like instruments, extensions or renewals, and options entered into or exercised on or after October 15, 2021. There will be some exceptions—e.g., for grants, certain tribal contracts, and subcontracts solely for the provision of products.

              Medicare and Medicaid Providers: President Biden told Americans last week: “If you’re seeking care at a health facility, you should be able to know that the people treating you are vaccinated.” The President’s new plan directs the federal Centers for Medicare & Medicaid Services (CMS) to require mandatory vaccinations for medical facilities that receive Medicare or Medicaid funding. CMS will require vaccination of workers in most health care settings—including, for example, nursing homes, hospitals, dialysis facilities, home healthcare facilities, and ambulatory surgical facilities.

What About the Rest of the Six-Part Plan?

              While mandatory vaccinations are getting the press headlines, they are only one part of the President’s new six-part plan. The five remaining parts of the plan include the following:

              Part Two—Booster Shots For Vaccinated Americans: President Biden announced readiness to roll out booster shots by the week of September 20, 2021, subject to authorization by the Food and Drug Administration and recommendations by the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices. It is not known at this time whether OSHA or any other federal agency will require paid time off for workers to get booster shots and recover from side effects.

              Part Three—Keeping Schools Open: President Biden is mandating vaccinations for teachers and staff employed by Head Start and Early Head Start programs, the Department of Defense (DOD), and Bureau of Indian Education-operated schools. The President has also called upon states to require vaccinations for teachers and school staff, and he has offered federal support for school districts whose strategies to prevent the spread of COVID-19 are undermined by elected officials or states. The plan also promises increased testing in schools and scientific review of a vaccine for students under the age of 12.

              Part Four—Testing and Masking: The President’s plan will expand access to point-of-care and over-the-counter at-home COVID-19 tests. Walmart, Amazon and Kroger have promised to step up and sell tests at reduced costs, starting this week. Also, free at-home rapid tests will be sent to community health centers and food banks, and free pharmacy testing will be expanded. It is uncertain whether OSHA will require employers, rather than unvaccinated employees, to pay for any weekly testing.

              The federal Transportation Security Administration is extending masking requirements for air and ground travel through January 18, 2022, and will double fines for violations. Also, masks will continue to be required for federal buildings, lands, military bases and overseas locations. Thus, employees who travel, or who work at or visit federal sites, must continue to wear masks in those environments.

              Part Five—Protecting Economic Recovery: The Small Business Administration (SBA) will increase the maximum amount that a small business can borrow from $500,000 up to $2 million under the COVID Economic Injury Disaster Program, and improvements will increase flexibility in accessing loans. When the new loan product launches, the SBA will offer a 30-day window when only small businesses seeking loans of $500,000 or less will receive awards. The SBA will also streamline the application process for the Paycheck Protection Program (PPP), which offers forgiveness of PPP loans when funds are used to keep employees on payroll. Also, a new SBA Community Navigator program will deploy community partners to underserved communities, to help small business owners connect with government resources.

              Part Six—Care for COVID-19 Patients: The federal government is deploying medical personnel from the DOD, the Department of Health and Human Services’ network of providers, and the Federal Emergency Management Agency’s network of emergency medical services providers to support hospitals during COVID-19 surges. The federal government is also distributing to the states monoclonal antibody treatments intended to reduce the risk of hospitalization. On August 26, 2021, Idaho Governor Brad Little announced a launch of COVID-19 monoclonal antibody treatment centers in northern, eastern and southwest Idaho, to treat COVID-19 patients. President Biden’s new plan will increase shipments of free monoclonal antibody treatments by 50% in September and deploy federal support to help hospitals and health systems stand up this treatment delivery.

What Are Your Next Steps?

The news this week is full of reports of threatened legal challenges to mandatory vaccinations. But legal challenges take time to file, litigate, and be decided. In the meantime, OSHA and other federal agencies are working on implementing the President’s new six-part plan.

Thus, now is the time for businesses to consider the requirements and opportunities offered by the President’s six-part plan and begin preparing for new federal regulations. For legal questions about how these requirements and opportunities may impact your business, please consult with your legal counsel.

If you would like assistance with updating your employment policies or handbook for vaccination or other COVID-19 workforce measures, or would like to find out about other legal services offered by MacMaster Law PLLC, please contact Emily MacMaster at www.macmasterlaw.com/contact.

[1] Issuance of a new ETS for mandatory vaccinations will require OSHA to update its prior ETS for preventing the spread of COVID-19 in healthcare workplaces. For information about the prior ETS, please see The New OSHA COVID-19 Emergency Temporary Standard: It’s Not Only for Hospitals at www.macmasterlaw.com/publications. The new ETS will also require OSHA to modify its advisory guidance in Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, which was most recently updated in August 2021. The guidance applies to workplaces that are not covered by the ETS for healthcare workplaces.