Late yesterday, President Biden announced a five-pronged plan (available here) targeted at increasing the number of people vaccinated against COVID-19. President Biden’s plan is designed to reduce the more than 80 million unvaccinated Americans by using the President’s regulatory powers to substantially increase the number of Americans covered by a vaccination mandate.
The vaccination mandates announced by President Biden include both “hard” mandates (for certain healthcare workers and federal workers) and “soft” mandates (for private-sector workers in businesses with more than 100 employees). In addition, the plan will provide paid time off for vaccination for most workers in the country. Each is described below.
New OSHA ETS Standard Requiring Private Employers with 100+ Employees to Implement “Soft” Mandates
The first prong in President Biden’s plan is to have OSHA issue a new Emergency Temporary Standard (or “ETS”) that will require all employers with 100+ employees to mandate that employees either: (a) receive the COVID-19 vaccine or (b) submit to weekly testing. To be clear, this will be a new OSHA standard that will apply to all employers with 100 or more employees.
Here’s the statement from the White House:
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
New “Hard” Mandate for Federal Employees and Federal Contractors
The second prong of President Biden’s plan is to issue executive orders requiring all federal employees and contractors to receive the COVID-19 vaccine. (Available here and here). Unlike the OSHA ETS standard, weekly testing is not an option for federal employees. Instead, exceptions to the vaccine mandate will be made “only as required by law.”
New CMS Rule Mandating Vaccination for Healthcare Workers
The third component of President Biden’s plan is a new CMS rule requiring all healthcare workers in CMS-regulated settings (including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies) to be vaccinated against COVID-19.
Here’s the explanation from the White House:
The Centers for Medicare & Medicaid Services (CMS) is taking action to 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 builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. Some facilities and states have begun to adopt hospital staff or health care sector vaccination mandates. This action will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.
The new rule still needs to be drafted and submitted for public review, but, from the White House’s description, it appears that COVID-19 vaccination will be required for healthcare workers, including those without direct patient care. That is, unlike the OSHA ETS rule, there is no option for weekly testing. It is not known whether the forthcoming CMS rule will contain exemptions for medical contraindications or religious objections.
Indeed, time is of the essence for healthcare employers. Just yesterday, the CMS published a notice on its website stating that it is anticipating issuing the new rules in October 2021 and that “facilities across the country should make efforts now to get health care staff vaccinated to make sure they are in compliance when the rule takes effect.” (Available here).
Requiring Proof of Vaccination at Large Venues
The fourth component of President Biden’s plan calls on large entertainment venues, like sports arenas and concert halls, to “require that their patrons be vaccinated or show a negative test for entry.” It is not clear whether or how the administration will enforce this mandate.
Paid Time Off for Getting Vaccinated
The final component of President Biden’s plan is that, as part of the OSHA ETS Rule that applies to employers with 100 or more employees, employers will be required to provide paid time off “for workers to get vaccinated or to recover” after they receive the COVID-19 vaccination.
President Biden’s plan is ambitious. But, the details of his plan will not be known until federal agencies, such as OSHA and CMS, publish the rules outlined by President Biden. These rules will be published in the coming weeks and we will continue to monitor this situation as it develops.