Employers are required to ensure that employees are vaccinated or tested regularly

It has been nine months since the first person in the United States received the COVID-19 vaccine, and since then employers have weighed the pros and cons of whether to require employees to be vaccinated as a condition of employment. . On September 9, 2021, President Biden narrowed down options for many employers when he announced a comprehensive six-pronged COVID-19 action plan (“plan”), which in part requires large employers to ensure that whether their workforce is vaccinated, or failing that, they undergo weekly COVID-19 tests. The stated goal of the plan is to ensure the United States uses all available tools to fight COVID-19 and save lives in the months to come, while keeping businesses and schools open and safe, and protecting the economy from further blockages and damage. .

The six components of the Plan are:

  1. Vaccinate the unvaccinated

  2. Protect the vaccinated more

  3. Keeping schools safe and open

  4. Increased testing and masking requirement

  5. Protect our economic recovery

  6. Improving care for people with COVID-19.

This blog will focus on the parts of the Plan that are most relevant to private employers and small businesses. More information on other aspects of the Plan is available here.

Vaccinate the unvaccinated

The presidential plan seeks to reduce the number of unvaccinated Americans by using regulatory powers and other measures to dramatically increase the number of Americans covered by immunization requirements. One of the main ways President Biden plans to achieve this goal is to require some employers to prescribe the vaccine (or regular COVID-19 testing) for their employees. In addition, the plan will provide paid immunization time off to most of the country’s workers. More specifically, the following mandates will have a direct and imminent impact on employers:

  • All employers with more than 100 employees must ensure their employees are vaccinated or tested weekly: The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all U.S. employers with 100 or more employees to ensure their workforce is fully immunized or will require that any unvaccinated worker produces a negative test result. at least once a week before coming to work. OSHA will issue a Temporary Emergency Standard (“ETS”) to implement this requirement. The ETS is expected to be released in the coming weeks and will go into effect shortly thereafter.

  • Employers must provide paid time off for employees to receive the vaccine: OSHA has also developed a rule that will require employers with more than 100 employees to provide paid time off for the time workers need to get the vaccine or to recuperate if they feel sick after receiving the vaccine. This requirement will also be implemented through the ETS.

  • All federal workers and federal contractors who do business with the federal government should be vaccinated: President Biden has signed executive orders requiring all federal executive workers to be vaccinated and ordering that this standard be extended to employees of contractors who do business with the federal government. President Biden’s orders for executive workers and federal contractors include exceptions for workers seeking religious or medical exemptions from vaccination.

  • Health care workers in Medicare and Medicaid hospitals and other health care facilities should be immunized: The Centers for Medicare & Medicaid Services (“CMS”) require COVID-19 vaccinations for workers in most health care settings who receive Medicare or Medicaid reimbursement, including, but not limited to, hospitals, dialysis centers, outpatient surgery facilities and home care agencies. This action will apply to nursing home staff as well as staff in hospitals and other CMS-regulated facilities, including clinical staff, people providing services through arrangements, volunteers and staff. who are not involved in the direct care of patients, residents or clients.

  • Large entertainment venues should require proof of vaccination or testing to enter: As part of the Plan, entertainment venues such as sports arenas, large concert halls, and other places where large groups of people congregate are encouraged to require their customers to be vaccinated or test negative before the event. Entrance.

Protect the country’s economic recovery

One of the goals of President Biden’s plan is to ensure that the country does not return to lockdowns and closures. Additionally, the plan offers new support for small businesses as they continue to battle the additional hurdles caused by the Delta variant. These reforms include:

  • New support for small businesses affected by COVID-19: The presidential plan will strengthen the COVID Injury-Related Economic Disaster (EIDL) Loan Program, which provides long-term, low-cost loans. The improvements will allow more businesses to gain more and more flexible support with the $ 150 billion in loanable funds still available in the program.

    • First, the Small Business Administration (“SBA”) will increase the maximum amount of financing a small business can borrow through this program from $ 500,000 to $ 2 million, which can be used to hire and retain employees, buy inventory and equipment; and pay off higher interest rate debt. The SBA will ensure that no small business is forced to start repaying these loans for two years after receiving the funding, so that small businesses can weather the pandemic without having to make payments as well.

    • In addition, the SBA will make it easier for small businesses with multiple locations in hard-hit industries such as gyms, restaurants, and hotels to access these loans.

    • Additionally, to ensure that taxpayer dollars are used to support businesses that really need help, the SBA has tightened controls and will work closely with the SBA Inspector General to monitor the program.

    • Finally, to ensure that “Main Street” businesses have more time to access the remaining funds, the SBA will offer an exclusive 30-day window of access during which only small businesses looking for loans. $ 500,000 or less will receive funding after the launch of the new and improved loan product. .

In addition to the above, as part of his plan, President Biden plans to increase COVID-19 testing by mobilizing industry to expand production of easy-to-use tests, making home testing more affordable, sending free rapid home tests to food banks. and other community organizations, and expanding free pharmacy COVID-19 testing. Additionally, the plan continues to require masking on federal property and continues to require masking for interstate travel, doubling fines for non-compliance. The plan also addresses booster injections and says the administration is preparing for the booster shots to begin as early as the week of September 20, 2021. Finally, the plan outlines the steps to be taken to protect children while keeping schools open by safety, and ways to improve care for those with COVID-19.

We anticipate that, in the coming weeks, the federal government will announce additional rules and guidance on COVID-19, and as always, we will keep you posted as new information is released.

© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 252

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