All employers with more than 100 employees: compulsory vaccination or weekly test
As part of the first part of the Path Out plan, President Biden will ask the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule that will require all employers with 100 employees or more to making sure their workforce is fully vaccinated or to requiring all workers who are not vaccinated to produce a negative test result at least once a week before coming to work. The exit plan calls on OSHA to issue a Temporary Emergency Standard (ETS) to implement this requirement. The White House estimates that this requirement will impact more than 80 million workers in private sector companies with more than 100 employees. Additionally, the Path Out plan will provide paid immunization time off for most workers and for workers who have unwanted side effects from the vaccination. It is not yet clear what the parameters for paid leave will be, but the Healthcare Employer-Specific ETS released by OSHA earlier this year already contains various provisions on leave and medical relocation benefits. which are likely to serve as a model. for paid leave required by this ETS.
While not explicitly outlined in the Path Out plan, mandatory vaccination may involve other concerns for employers with mandatory vaccination policies, including, but not limited to, health care plans. , disability insurance and workers’ compensation claims. The precise wording of any ETS should set out the parameters for when and how religious or medical exemptions can come into play. The Equal Employment Opportunity Commission (EEOC) has already updated its technical advice on COVID-19 to clarify that any vaccination with FDA clearance is not a “medical examination” for the purposes of the Americans with Disabilities Act (ADA). Employers may also need to consider the cost of COVID-19 testing, including whether they will cover the costs or arrange other methods for employees to cover their own tests and provide results.
We expect the new ETS to be the subject of immediate legal challenges, so stay tuned.
Federal executive workers and government contractors: compulsory vaccination
President Biden has signed an executive order that will require all federal executive employees to be vaccinated without the option of testing. This executive order does not directly include employees of federal or legislative courts. The president also signed an executive order ordering that this vaccination requirement be extended to certain employees of federal contractors who do business with the federal government. A federal workforce security task force will issue guidance no later than September 24, 2021, which will further explain the requirements for federal contractors and any exceptions. In accordance with this decree, these requirements “will apply to all workplaces (as specified by the Safer Federal Workplace Task Force Guidance) in which a person is working on or in connection with a federal government contract or similar instrument. contract. “
Healthcare workers in Medicare and Medicaid participating facilities
As part of another part of President Biden’s Path Out plan, the Centers for Medicare & Medicaid Services (CMS) are taking action to require COVID-19 vaccinations for employees at most healthcare facilities that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, day surgery facilities, and home health care agencies. This action builds on the recently announced CMS vaccination requirement for nursing homes and will apply to nursing home staff as well as staff in hospitals and other CMS regulated facilities, including clinical staff, people providing services through private arrangements, volunteers and staff who are not involved in the direct care of patients, residents or clients. These requirements will apply to approximately 50,000 claimants and will cover the majority of healthcare workers in the United States.
Great indoor sports and entertainment venues
President Biden’s Path Out plan also calls on major entertainment and sports venues to demand that customers be vaccinated or produce a negative COVID-19 test. In his September 9, 2021 speech deploying his Path Out plan, President Biden specifically mentioned major entertainment venues, sports arenas, concert halls and cinemas. Sites considering such requirements should review local or state laws regarding vaccination requirements, as some states have enacted laws that prohibit business entities from requiring customers to provide proof of vaccination.
The President’s discharge plan includes requirements for teachers and staff in the Head Start and Early Head Start programs, teachers and staff in the Department of Defense (DOD) child and youth programs, and teachers and staff schools run by the Bureau of Indian Education get vaccinated. . The Department of Health and Social Services will initiate the development of rules to implement this policy for the Head Start and Early Head Start programs. In addition, the Path Out plan calls on governors to demand vaccinations for teachers and school staff. The Path Out plan will also require immunizations for federal employees, including those who work in DOD and Bureau of Indian Education schools.
Additionally, the Path Out plan describes how the Department of Education will make additional funds available to help school districts close funding gaps when funding has been withheld by their state for the implementation of COVID-protocols. 19. Local school districts will be able to apply to the Department of Education in the coming weeks. These funds are different from the funds already allocated under the American Rescue Plan.
The Path Out plan also outlines several initiatives designed to increase COVID-19 testing and make it more affordable. Several retailers will sell rapid in-home COVID-19 tests at cost to consumers for the next three months. The Path Out plan also includes a federal government investment of nearly $ 2 billion to purchase rapid point-of-service and over-the-counter COVID tests at home. Medicaid must also cover the cost of testing for recipients. While this part of the plan is aimed at increasing testing, the plan does not specify whether or not employers will bear the financial burden of testing for employees who opt for testing instead of complying with a vaccination mandate or whether employers are required to pay employees for the time spent testing each week. However, some states have already required employers to pay for mandatory testing.
Another part of the plan aims to help more than 150,000 small businesses. More than $ 150 billion in loanable funds are still available under the COVID Economic Disaster Lending (EIDL) program. 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, purchase inventory and equipment and pay off the higher interest debt. . The SBA also aims to facilitate access to these loans for small businesses with multiple locations in hard-hit industries like restaurants, hotels, and gyms. The SBA will offer an exclusive 30-day access window where only small businesses looking for loans of $ 500,000 or less will receive rewards after the rollout of the new loan program. The plan will also direct changes to the Paycheck Protection Program (P3) which forgoes federal loans to employers in an attempt to streamline the remittance process.
Additional areas of interest
The White House said the Path Out plan will provide additional support to hospitals facing capacity issues, including a commitment to double the number of DOD teams deployed to support hospitals experiencing an increase in COVID cases. 19. The Path Out plan also calls for increasing the average weekly rate of free monoclonal antibody treatment shipments and deploying federal monoclonal antibody strike teams. The plan also perpetuates requirements to hide federal property and interstate travel.
Although OSHA’s ETS regarding mandatory vaccinations for employers with more than 100 employees is expected to be rolled out in the very near future, it is almost certain that it will be satisfied by legal challenges from employers, professional organizations and state governments. In general, OSHA has the authority to enact an ETS that would remain in effect for up to six months without going through the normal rule-making review and comment process. It should be noted that there is precedent for courts to overrule an OSHA ETS; in 1984, a court dismissed an OSHA ETS regulating asbestos after finding that OSHA was not providing sufficient support that workers were in serious danger and that an emergency standard was needed To protect them. All employers, regardless of their size, are still required to comply with the general obligation clause of the OSH Act. The details of this exit plan and the anticipated ETS are far from certain.