Path Out of the Pandemic: Biden Administration Will Require Employers with 100+ Employees to Mandate COVID-19 Vaccination or Weekly Testing

The Biden administration announced on Sept. 9, 2021, a broad action plan to combat the ongoing COVID-19 pandemic. President Biden’s Path Out of the Pandemic takes a multipronged approach, but the factor perhaps most critical to employers is its vaccination mandate.

Biden directed OSHA to develop and implement a new emergency temporary standard (ETS) that will require employers with 100 or more employees to ensure that their workforce is fully vaccinated or require unvaccinated employees to undergo COVID-19 testing. Those who opt for testing must provide a negative test on at least a weekly basis before entering the workplace.

The proposed ETS, which will potentially impact over 80 million private sector workers, will also require covered employers to provide employees with paid time off to receive the vaccine.

At this time, the Biden administration has provided no additional details regarding the ETS or when it will be released. The specifics, including the timing of the vaccination, testing, and paid leave requirements, as well as how employers will need to count their employees for purposes of determining the 100-employee threshold, will be critical for employers to understand prior to implementing policy changes.

Timing and Other Predictions
In January, the Biden administration ordered OSHA to issue a COVID-19 ETS. The agency took several months to do so, finally issuing an ETS in June that applied to healthcare and related industries only. It seems unlikely that there will be a comparable lag in the new ETS. The delay in issuing the earlier ETS may have been, in part, attributable to a then-improving outlook for the pandemic—something that is not currently the case. During a press briefing yesterday afternoon, OSHA stated that it expects to issue the new ETS in "coming weeks." As a result, employers can likely expect to see the new requirements soon.
 
The ETS previously issued for healthcare organizations requires covered employers to provide "reasonable time and paid leave for vaccinations and vaccine side effects." During his Sept. 9 "Path Out of the Pandemic" press conference, Biden stated that "[n]o one should lose pay in order to get vaccinated or take a loved one to get vaccinated." Based on OSHA's healthcare ETS and Biden's statement, employers will want to pay close attention to paid time off requirements included in the new ETS, which likely will include paid time off to be vaccinated or recover from the vaccine and may cover taking a family member to a vaccination appointment.
 
Finally, the Biden administration has provided no information yet on how an employer is to count employees for purposes of the 100-employee threshold. For certain current recordkeeping purposes, OSHA requires employers to include part-time and seasonal workers in its calculations. While it is not yet known if that same approach will be used with the new ETS, understanding the counting methodology that OSHA will apply will be critical to employers as we enter the fall and holiday seasons when many employers hire temporary or seasonal employees.
 
Federal Employees, Federal Contractors, and Healthcare Workers
As part of the Path out of the Pandemic plan, President Biden has also signed two executive orders that mandate vaccination for all executive branch employees and for employees of certain federal contractors. The plan also requires the Centers for Medicare and Medicaid Services (CMS) to begin requiring vaccination for employees in most healthcare settings as a condition of continued federal funding.
  
Takeaways
At this time, very few details regarding the forthcoming ETS are known, and it is likely that it will be subject to legal challenges. Maslon's Labor & Employment Group will be closely monitoring this evolving situation, and we will provide additional legal alerts covering critical developments. Our attorneys can also help employers facing potentially complicated questions from employees about this anticipated requirement and work with employers to develop effective workforce communication strategies.