Employment Ramifications of President Biden’s COVID-19 Action Plan

Employment Ramifications of President Biden’s COVID-19 Action Plan

On September 9, 2021, President Biden issued his “Path out of the Pandemic” COVID-19 Action Plan (hereinafter “the Plan”).  The Plan outlines six general points of focus: 1) vaccinating the unvaccinated; 2) establishing further protections for the vaccinated; 3) keeping schools safely open; 4) increasing testing and requiring masking; 5) “protecting our economic recovery;” and 6) improving care for those with COVID-19.  From a practical standpoint, however, the White House’s 6-pronged strategy really has two main thrusts.  First, the Plan requires vaccinations for employees working for the federal government and/or on federal contracts.  Second, the Plan mandates vaccination against COVID-19 or weekly testing for employees working for any employers with 100 or more employees.  

Unfortunately, this unprecedented Plan is as silent on the particulars regarding these separate directives as it is broad.  Like other sweeping policy rhetoric coming out of the Executive Branch, it has apparently been left to the administrative agencies to add flesh to the bones of the vaccine directives.  The trouble is, the Plan itself appears to have been issued without much forewarning being given to the agencies and, as a result, they are currently playing catch-up.  This article provides an overview of what we know about the two directives thus far and what employers should do in the weeks and months ahead.

The Federal Vaccine Mandate

Coinciding with the announcement of the Plan, President Biden issued two Executive Orders on September 9, 2021.  These orders direct the executive departments and agencies to mandate vaccination against COVID-19 for all executive branch employees and employees of some federal contractors.  Guidance issued by the Safer Federal Workforce Task Force on September 24, 2021, has shed some light on exactly who is covered and what covered employers must do to be in compliance with the Executive Order. 

Initially, there are no employee size limitations for government contractors.  In fact, subject only to very narrow exceptions, the federal mandate applies to all contractors whose contracts or subcontracts with the federal government include language incorporating the requirements of the Executive Order.  All existing contracts with the federal government related to services, construction, or federal property must include the incorporation language when extended or renewed after October 14, 2021.  Moreover, all contracts awarded after November 14, 2021, must include the incorporating language. 

It appears the federal vaccine mandate was crafted with the intent to have the broadest application possible.  Indeed, it reaches and applies to all remote workers, administrative staff, support staff, etc., who are “working on or in connection with a covered contract” or at a “location controlled by a covered contractor.”  Thus, it will cover employees working from home and those not working directly at or on a project for the government.  Additionally, the mandate and the September 24 guidance supersede any state or local law prohibiting compliance with any of the protocols they establish.  All things considered, the federal mandate is expected to cover over 4 million Americans.

For those contractors covered by the federal mandate, there are several requirements.  Most notably, all their employees must be fully vaccinated by December 8, 2021, unless exempted.  The mandate eliminates the testing option for unvaccinated employees unless they are approved for an exemption.  Thus, most covered employees may no longer opt to be tested in lieu of getting the shot.  Covered contractors must also follow the CDC’s guidance on mask wearing and social distancing, post signage at entrances regarding safety protocols, and collect and retain a copy of employee vaccination verification.  

There is still a lot we don’t know about the federal contractor vaccine mandate.  For example, questions linger over what happens if covered employers refuse to comply and how will the government enforce the mandate.  For now, the silence on these issues seems to indicate it will be left to covered employers to enforce the mandate or they could potentially be in breach of their contract with the government.  Some experts are expecting the Office of Management and Budget to issue further guidance pertaining to the federal vaccine mandate.  Covered employers should be on the lookout for that or any other guidance pertaining to the Plan.    

The 100-Employees or More Vaccine Mandate

While the public sector grapples with the federal mandate described above, the private sector waits with bated breath for the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to issue its expected emergency temporary standard (“ETS”).  OSHA’s ETS is expected to require all employers with at least 100 employees to ensure their workforce is fully vaccinated or subjected to weekly COVID-19 testing.  The ETS is also expected to require covered employers to provide paid time off to get vaccinated and to recover from any side effects of the shot.  The White House has said it anticipates the ETS will apply to over 80 million private sector workers. 

OSHA has been quiet about its expected ETS.  However, current estimates suggest it will be issued by or around the end of November.  There will be no advance opportunity for public comment on the ETS and OSHA has said informal feedback will not be considered.  Once issued, the ETS will almost certainly become effective quickly, unless stayed by court action.  OSHA will then have six months to take final action to make the temporary standard permanent.  Employers with over 100 employees should continue to watch for OSHA’s ETS or any guidance that may be issued ahead of its issuance. 

Other Requirements of the Plan

In addition to the vaccine mandates for certain public and private employer workforces, the Plan also places obligations on healthcare facilities, entertainment venues, and schools.  Regarding the healthcare industry, the Plan provides that the Centers for Medicare and Medicaid Services will require hospital and other health-related facility employees to be vaccinated as a condition for continued federal funding.  Similarly, the Plan calls on entertainment venues like arenas and concert halls to require its guests to show proof of vaccination or a negative test to be admitted.  Finally, the Plan requires staff in federal schools to be vaccinated and calls on the states to mandate vaccination for their own school employees.  Attorneys in the Saginaw Bar Association representing clients that fall within any of the above categories subject to a vaccine or testing mandate should feel free to contact any of the attorneys at Masud Labor Law Group to discuss the impact of the Plan.  For those representing clients falling outside the above categories, you have nothing to worry about . . . yet.  This is an ever-changing area of the law, and one never knows what new developments tomorrow may bring.  Indeed, in the coming months many states will undoubtedly review OSHA’s emergency standard and may even look to emulate it or any of the other Plan requirements.