On September 9, 2021, President Joseph Biden announced an expansive six-pronged national strategy for combating the COVID-19 pandemic in an action plan entitled, Path Out of the Pandemic (the "Plan"). The Plan includes COVID-19 vaccine mandates for employees of employers with 100 or more employees, federal contractors, and certain healthcare entities. Other aspects of the Plan that will impact some employers include paid time off for employees to receive and recover from the vaccine, and an expansion of federal financial assistance. While many details of the Plan are still unknown and legal challenges are likely to follow, below are some of the key takeaways for employers.
Employers of 100 or More Employees
The Plan announces that the Department of Labor’s Occupational Safety and Health Administration ("OSHA") is developing an Emergency Temporary Standard ("ETS") that will require all employers with 100 or more employees to ensure that their workers are either fully vaccinated or produce a negative COVID-19 test result on a weekly basis before coming to work. The Plan states that the ETS will also require covered employers to provide paid time off for the time it takes to get vaccinated and to recover from any vaccine side effects. These requirements are anticipated to impact over 80 million workers in the private sector.
The timing of the ETS is unclear, but OSHA is expected to issue the ETS within the coming weeks. The ETS will be effective as soon as it is published in the Federal Register. A proposed permanent standard will then go through the formal rulemaking process with the opportunity for comment.
In conjunction with the Plan, President Biden issued multiple Executive Orders, one of which applies to federal contractors. This Executive Order requires federal agencies to include a clause in contracts “specify[ing] that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force ….” This requirement applies to new contracts and the extension or renewal of existing contracts. The Safer Federal Workforce Task has also been ordered, as part of its issuance of Task Force Guidance, to “provide 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 to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument.”
The Plan announces that the Centers for Medicare & Medicaid Services ("CMS") will require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including, but not limited to, hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action expands the vaccination requirement for nursing home staff that CMS previously announced. It is expected that these requirements will impact approximately 50,000 providers and cover a majority of health care workers throughout the county.
Federal Financial Assistance
The Plan strengthens the COVID Economic Injury Disaster Loan ("EIDL") program, which provides long-term, low-cost loans, by allowing more small businesses to get greater and more flexible support from the $150 billion in loanable funds still available in the program. These improvements include:
- the maximum amount of the loan will increase from $500,000 to $2 million;
- loan repayment will not be required until two years after receipt of the funding;
- tightened controls will be implemented to ensure that the funding is used to support small businesses that truly need help, like restaurants and hotels; and
- a 30-day exclusive window of access where only small businesses seeking loans of $500,000 or less will receive awards after the new improved loan product launches.
Further, the Plan seeks to improve the Paycheck Protection Program by implementing a new streamlined approach for forgiving loans of $150,000 or less that are used to fund payroll. Under the streamlined approach, the Small Business Administration ("SBA") will send a pre-completed application form to the borrower to review, sign, and return to SBA. The SBA will then work with the lender to complete the loan forgiveness process.
What should employers do?
- Employers with 100 or more employees are advised to begin planning for the upcoming COVID-19 vaccination mandate. For instance, notifying employees now that the federal mandate is looming may encourage employees to get vaccinated sooner and make compliance easier once the mandate goes into effect. Covered employers will also need to decide whether to mandate vaccination (subject to limited exceptions required by law) or permit weekly testing as an alternative. Collecting and tracking weekly test results as well as incurring the costs associated with weekly tests may be burdensome for some employers to take on. For those who decide to mandate vaccination, employers should review their administrative processes for navigating the interactive process in response to employees seeking an exemption from the mandate by requesting accommodations for disabilities and sincerely held religious beliefs.
- Small businesses struggling financially may want to consider applying for a federal loan under the EIDL program. For those who previously obtained such a loan, additional funding may now be available and, if the loan forgiveness process seemed too daunting to begin, now may be a good time to seek forgiveness through the new streamlined process.
If you have questions about COVID vaccine mandates, or if you have questions on any other issues relating to employment law, please contact one of our attorneys.
|Eric C. Bellafronto||Ernest M. Malaspina||Sean Bothamley|
|Karin M. Cogbill||Richard M. Noack||Jonathan Heller|
|Jennifer Coleman||Daniel F. Pyne III||Shirley Jackson|