On September 9, 2021, President Biden announced that the Occupational Safety and Health Administration ("OSHA") is developing an Emergency Temporary Standard ("ETS") as part of an array of COVID-19 directives.
OSHA's impending ETS will apply to private-sector employers with 100 or more employees. The expected ETS will require all employees to be vaccinated or undergo COVID-19 testing at least weekly in order to work. Further, the ETS will likely require covered employers to give paid time off to employees to receive the vaccine and to recover from any side effects caused by the vaccine. While the parameters of the paid time off remain unknown, it is expected that covered employers will be required to provide four (4) hours of paid time off for each dose of the vaccine (if the vaccine is administered during working hours) and eight (8) hours of paid time off to recover from any side effects from each dose.
OSHA has not issued the ETS and has not announced a timeline for implementation. Once enacted, the ETS will remain in effect for six months (unless terminated earlier). After six months it would have to be replaced by a non-emergency OSHA standard, which would have to undergo the formal rule-making process with notice-and-comment period, to remain in effect.
The President also announced the Centers for Medicare & Medicaid Services ("CMS"), in collaboration with the Centers for Disease Control and Prevention, will soon require vaccination for all employees working in a health care facility that receives Medicare or Medicaid reimbursement. This requirement will extend to all clinical staff, individuals providing services under arrangements, volunteers, and to employees not involved in direct patient, resident, or client care. The impending mandate from CMS apparently will not include weekly COVID-19 testing as an alternative to vaccination.
CMS is currently developing an "Interim Final Rule with Comment Period" that will likely be issued in October. In the meantime, CMS recommends that all certified Medicare and Medicaid facilities begin early compliance with the imepending rule. CMS urges all such facilities to provide available resources to support employee vaccinations.
In addition, President Biden signed an Executive Order requiring federal contractors to certify that all of their employees are either vaccinated against COVID-19 or must wear a mask at all times and be subject to regular testing. The Executive Order requires the Safer Federal Workforce Task Force to issue detailed Guidance applicable to federal contractor or subcontractor workplace locations, including "definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions." The Task Force must issue this Guidance by September 24, 2021.
The following types of federal contracts will be covered by the impending Task Force Guidance:
- Procurement contracts for services, construction, or a leasehold interest in real property;
- Contracts for services covered by the Service Contract Act;
- Contracts for concessions; and
- Contracts with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.
The President's announcement raises the following significant unanswered questions:
- Will the vaccination mandate apply to employees working remotely?
- How will the 100-employee threshold be counted?
- Once the impending regulations are enacted, how much time will employers have to comply with the new vaccination mandates?
- Will employers be required to collect proof of vaccination? If so, what type of proof?
- Will health care workers be entitled to a reasonable accomodation in the event they object to vaccination due to medical reasons or sincerely held religious beliefs?
- What type of COVID-19 testing will be required? Who will pay for the required testing?
- Will employers be required to bargain with union representatives to the point of agreement or impasse before implementing vaccination mandate for union employees?
If you have any questions or want to learn more as new information becomes available, please contact a member of our Labor & Employment Group.