Last night, President Biden announced his administration’s latest efforts in the battle against COVID-19. These efforts include directing the Occupational Health and Safety Administration (OSHA) to draft new rules requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated workers to submit to weekly testing. Employers with more than 100 employees will also be required to provide paid time off for their employees to get vaccinated and for time missed because of post-vaccination side effects. According to the White House, this requirement will impact over 80 million private sector workers.
Additionally, those working in healthcare settings that receive Medicare or Medicaid funds (including hospitals, ambulatory surgical settings, home health agencies, and dialysis facilities, (i.e., the majority of healthcare workers across the country) will be required to be vaccinated. The White House is also requiring all federal workers (estimated at 2.5 million) to be vaccinated. Notably, private, non-healthcare workers will have a weekly testing option, the others will not.
Of course, employers are still required to make reasonable accommodations for employees who cannot be vaccinated because of a disability (under the Americans with Disabilities Act) or because of a sincerely held religious belief (under Title VII), unless doing so will create an undue burden.
As with many things, the devil will be in the details and most of those details are unknown at this point. For example, no time frame has been provided for OSHA to draft the requirements relating to private employers or for the Centers for Medicare & Medicaid Services (CMS) to change reimbursement requirements for healthcare providers. However, as to the requirements for private employers, President Biden directed OSHA to issue an “Emergency Temporary Standard” or ETS, which does not require the usual notice and comment period for regulations before taking effect. Rather, when OSHA issues an ETS, it takes effect immediately upon publication and then is subject to the usual procedure for adopting a permanent standard. That means that private non-healthcare employers could see a vaccine/testing mandate sooner rather than later, although it is expected any ETS issued by OSHA will be challenged in the courts.
Comment: As the Delta variant ravages parts of the country, more and more employers have instituted vaccine mandates. Under this announcement, any healthcare provider receiving funds from Medicare or Medicaid must require employees to be vaccinated and cannot use weekly testing as an alternative. This obviously will require many healthcare providers to revise their COVID and vaccination policies. The Biden administration is also clearly hoping more non-healthcare private employers will issue mandates even before OSHA issues its ETS, and if they don’t the administration will rely on OSHA to require employers to do so. Developing and implementing vaccine policies is no easy task. Employers will also have to respond to requests for religious and medical accommodations, a process that is full of legal minefields. If your organization needs help developing a vaccination policy or addressing requests for medical and/or religious accommodations, we can help.
Additionally, Julie Kinkopf will be part of a remote panel discussion on COVID-19 legal compliance on Tuesday, September 14, 2021, at 7:45 a.m. (more information about that program can be found here).
