On September 9, 2021, President Biden issued a multi-pronged plan, Path Out of the Pandemic: President Biden’s COVID-19 Action Plan (“Plan”), to move the country beyond the pandemic. The following three components of the Plan will impact many employers across the country: (1) an Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (“OSHA”); (2) a final rule by the Centers for Medicaid and Medicare (“CMS”); and (3) an Executive Order that applies to many federal contractors (Executive Order 14012).

Employers immediately scrambled to determine which aspects would apply, and what they would need to do. However, many quickly learned that there are many unknowns. Employers will certainly have work to do once the dust settles, but there are many steps to take in the interim to be better prepared to comply with any necessary obligations.

The currently available information about the ETS, the CMS final rule, and the Executive Order is below, as well as suggestions about what employers should be doing now.

The ETS

Approximately one month after the President’s announcement, OSHA has yet to publish a draft ETS or signal when the ETS will be issued (beyond a reference to the “coming weeks”). This makes it difficult to predict many details of the ETS. However, according to the Plan, the ETS will:

• Require employers with 100 or more employees to require weekly COVID-19 testing of unvaccinated workers; and
• Require employers with 100 or more employees to provide paid leave for employees to receive the COVID-19 vaccine(s) and recover from side effects.

Based on the Department of Labor’s (“DOL”) unofficial comments, it appears employers will be covered based on company-wide numbers – not per establishment, and that it will not apply to remote employees except in limited circumstances (i.e. if the remote worker has work-related in-person contacts).

There are many unknowns, including whether employers will have to pay for time spent testing and any testing costs, what types of test the ETS will permit (i.e. rapid test, PCR, etc.), whether there will be other logistical requirements related to testing, and what recordkeeping obligations employers will have, among other things.

We expect the ETS to go into effect quickly after being issued. However, there may be some time provided to employers to ramp up compliance.

Twenty-one states have state OSHA plans (Georgia does not have a state OSHA plan). Those states will have 30 days to adopt the ETS or to develop an alternative standard that is at least effective as the ETS.

Finally, legal challenges are expected by both private employers and conservative states. While there is no question that OSHA has the authority to issue an ETS, it is unclear whether OSHA will able to show that it meets the standard to do so.

Best Practices for the ETS

Because many details of the ETS are unknown, it is difficult for employers to fully develop a COVID-19 vaccination and test policy. However, there are some strategies to help employers craft a plan and be in a better position to comply when the ETS is issued:

1. Employers that do not know the vaccination rate of their workforce should consider finding out.
   1. This should be done delicately, especially if you expect to have high rates of unvaccinated employees. For example, you may want to give the option to decline to respond or provide a short explanation about why you are asking this information.
   2. If very few workers are vaccinated, it may be worth exploring options that would minimize testing (e.g., ways to encourage vaccination).
   3. Some employers may decide to vaccinate employees (subject to reasonable accommodations) to avoid the potential testing and administrative costs associated with the ETS.
2. Employers may benefit from looking into testing options to gauge availability, price, turnaround time, etc. Testing options should not be decided until the ETS is published, as it may dictate testing options.
3. Think about the logistical details of getting testing/vaccination information from employees, how the information will be stored, who will have access, who will review any accommodation requests (if any).
4. It may be appropriate to open the lines of communication with any unions representing employees.
5. Employees may not understand what is going on. Be transparent about what we know/don’t know. Consider giving managers some high-level talking points if they are getting questions about these issues.
6. Be prepared for accommodation requests, including brushing up on how to deal with religious accommodation requests. The ETS will have two options (testing or vaccination), which should reduce the number of exemption requests that are received. However, it is possible that employees could seek to be exempt from both testing and vaccination. Many employers have seen a significant uptick in religious accommodation requests, and that trend is likely to continue.

The CMS Final Rule

In October 2021, CMS is expected to issue a final rule requiring many healthcare employers to mandate employee vaccinations. The rule will apply within all Medicare and Medicaid-certified facilities, which may include hospitals, outpatient facilities, long-term care facilities, hospices, home health agencies, clinical labs, ambulances, and durable medical equipment suppliers. We expect the Final Rule to permit for exemptions due to religious and medical reasons.

Companies that do business with healthcare entities should keep an eye out for the final rule. Given the vulnerability of the patient population, it is possible that the rule will extend vaccination requirements beyond healthcare workers.

Best Practices for the CMS Final Rule

CMS has encouraged covered employers to mandate vaccination in advance of the final rule. Employers that are not covered by this rule, but do business in healthcare facilities, should keep an eye out for updates on the final rule. They may also want to ask whether their healthcare customers and clients intend to impose any requirements for workers coming onsite for planning purposes.

Executive Order 14012

Executive Order 14012 applies to certain federal contractors and subcontractors. It requires covered contractors to comply with guidance issued by the Safer Federal Workplace Task Force (“Task Force”). The Task Force guidance has three primary requirements: (1) contractor employees must be vaccinated unless legally entitled to an accommodation; (2) contractors must require others in the workplace to follow masking and physical distancing protocols; and (3) contractors must designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Covered contractor employees must be fully vaccinated by December 8, 2021.

The applicability of the Order has caused some confusion. On its face, the Order applies to procurement contracts for services, construction, or a leasehold interest in real property; contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.; contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and contracts entered into 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.

Notably, it covers new contracts, as well as “new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument…”

The Executive Order does not cover grants, manufacturers or suppliers of goods, contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, contracts or subcontracts for $250,000 or less (in most cases), or to employees who perform work outside the U.S. or its outlying areas.

Despite setting these parameters, the Task Force Guidance strongly encourages agencies to apply the Guidance to non-covered contracts.

The Task Force Guidance is also broad in terms of employee coverage. For example, remote employees are subject to the vaccination requirement.

Like the ETS, the Executive Order will face legal challenges.

Best Practices for Federal Contractors

1. Confirm coverage before taking action. Many contractors assume they are covered because they have an existing contract with the federal government. Those employers should first confirm whether they have the type of contract with the government that is covered by the Executive Order, and, if so, when they can reasonably expect a new contract, renewal or extension.
2. Closely review new government contracts (including subcontracts) for these requirements. As noted above, an agency may include the requirements in a contract that is not covered by the Executive Order.
3. Read the Task Force Guidance in full. We have only provided a few highpoints from the 14-page guidance. The Task Force Guidance is subject to change, so check for updates on a regular basis.
4. Covered contractors should review their subcontracts to confirm which may be subject to the Executive Order through the relationship.
5. As with the ETS, it is helpful to get an idea of current vaccination rates as soon as possible. Covered contractors should develop a timeline for full compliance with the vaccination requirement.
6. Be prepared for exemption requests and what types of accommodations may be feasible. Covered contractors may receive a large volume of requests. These issues can be difficult to navigate, especially when an employer has contractual obligations related to compliance.

Conclusion

There are many moving parts to the Plan and much is still being developed/implemented. However, that gives employers a great opportunity to develop a strategy for compliance that works best for their workforce.

This material is provided for informational purposes only. It is not intended to constitute legal advice. Recipients should consult with counsel before taking any actions based on the information contained within this material.

HRS is actively monitoring the COVID-19 situation extremely closely. Our team will continue general operations per usual and will keep our website up-to-date with information regarding COVID-19.