On September 9, 2021, President Biden announced sweeping requirements for COVID-19 vaccination that will require larger employers to mandate employees be vaccinated or undergo weekly testing. Employees in certain health care settings will also be required to receive the COVID-19 vaccination. These requirements were addressed in President Biden’s new COVID-19 Action Plan, Path Out of the Pandemic (the “Plan”), which can be found here.
Employers with 100 or More Employees
The Plan directs the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to prepare another Emergency Temporary Standard (“ETS”). In June 2021, OSHA released an ETS that required covered health care organizations to adhere to very specific and technical safety requirements related to COVID-19, although it did not require health care employers to mandate employee vaccinations.
According to the Plan, OSHA is developing a rule to require all employers with 100 or more employees to mandate employees be vaccinated from COVID-19 or produce a negative test result on a weekly basis before reporting to work. As part of the rule, covered employers will be required to provide paid time off for the time spent by an employee to get vaccinated and recover if not feeling well following their vaccination.
The Plan does not establish the timeline for the ETS to be issued nor does it address details about important questions, including how employers should verify employee vaccination status, how medical and religious exemptions should be addressed, who pays for the weekly testing for employees who are unvaccinated and whether that testing time must be compensated.
Health Care Employers
The Plan also refers to how CMS will be requiring COVID-19 vaccinations for workers in health care settings that receive Medicare or Medicaid reimbursement as a condition for receiving federal funding under the programs. CMS released a statement on September 9 confirming that it intends to issue an Interim Final Rule with Comment Period in October 2021. It is not clear whether medical and religious exemptions will be available for health care employees, either for the vaccine requirement or the testing requirement. A non-exhaustive list of health care settings that will be covered by the Interim Final Rule includes hospitals, dialysis facilities, ambulatory care surgical settings and home health agencies. As explained in the Plan, this action builds on the vaccination requirements for nursing facilities as previously announced by CMS.
As a result of the FFY 2022 Inpatient Prospective Payment System Final Rule, hospitals were already facing the requirement to produce numbers of vaccinated employees, as part of the Hospital Inpatient Quality Reporting, for one week each month in the last quarter of 2021. It remains to be seen whether this requirement may change in light of the Plan.
Other Key Items
As reported in the Plan, President Biden also signed two executive orders on September 9, 2021 that mandate vaccination for executive branch employees and certain employees of covered federal contractors. Those executive orders can be found here and here. Under the new orders, individuals may not avoid the vaccination mandate by electing COVID-19 testing unless an exemption request is approved.
Also, the Plan calls for entertainment venues like sports arenas, large concert halls and other venues where large groups of people gather to require that their patrons be vaccinated or show a negative test for entry.
Another key item addressed is that the Plan states that the Administration is preparing for boosters to start the week of September 20, subject to authorization or approval by the Food and Drug Administration and a recommendation from the CDC’s independent Advisory Committee on Immunization Practices. The goal is to make getting a booster simple and at no charge.
What Now?
There are many more questions than answers at this point, and it may remain that way until the ETS and CMS Final Rule are issued. For example, in states and local areas that have passed laws or ordinances related to these topics, there will be questions around what law or emergency order must be followed. For health care employers already covered by the June 2021 ETS, questions are likely to arise around the interplay between the two standards. Several lawsuits challenging the legality of these planned actions have already been threatened. Hall Render will publish additional content as guidance related to the Plan is released. We anticipate fluidity and evolution of the guidance as the Plan is implemented, as has been the case with most COVID-19 policymaking.
If you have any questions or would like additional information on this topic, please contact your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
