On Thursday, September 9, 2021, President Joe Biden announced a series of new Executive Orders, rules and regulations aimed at preventing COVID-19 infections throughout the United States. Several of these orders will impact private employers.
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing an emergency rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated against COVID-19, or require any unvaccinated workers to submit to COVID-19 tests on at least a weekly basis.
OSHA is expected to issue an Emergency Temporary Standard (ETS) to implement these requirements. The rule will require covered employers to provide paid time off for workers to be vaccinated and to recover from vaccination-related side effects.
Once the OSHA ETS is implemented, this rule will affect California employers with 100 or more employees. Along with continuing to follow the Cal/OSHA ETS already in effect, covered California employers will now be required to determine the vaccination status of their employees, and to ensure that any employees who are not fully vaccinated submit to weekly COVID-19 testing. If the anticipated OSHA ETS is silent about who bears the cost of weekly testing and time spent being tested, we anticipate that existing California law will require covered employers to bear the cost.
Employers who do not comply with the OSHA ETS requirements can expect to be issued fines. This requirement is expected to impact over 80 million workers in the United States. We will continue to update you as further information becomes available.
President Biden signed Executive Orders requiring all federal executive branch workers and employees of federal contractors to be vaccinated against COVID-19. A link to the Executive Order impacting federal employees can be found here. A link to the Executive Order impacting federal contractors can be found here.
The Safer Federal Workforce Task Force recently issued additional guidance detailing how federal agencies and federal contractors should comply with these Orders. The Frequently Asked Questions and Answers for federal Executive Branch employees is available here. The guidance for federal contractors and subcontractors, which includes “Frequently Asked Questions and Answers,” can be found here.
Federal employees must be fully vaccinated by November 22, 2021. Federal contractor employees must be fully vaccinated by December 8, 2021.
Like the mandate for federal employees, the guidance for federal contractors requires that contractors ensure all of their employees are fully vaccinated against COVID-19, “except in limited circumstances where an employee is legally entitled to an accommodation.” Accommodations may be required for employees who cannot be vaccinated because of a disability (such as a medical condition) or because of a sincerely held religious belief, practice, or observance.
The vaccine requirement extends to all employees of federal contractors working on or in connection with a covered federal contract or working at a federal contractor workplace, even if the employee is not directly engaged in the specific work required by the federal contract but works in human resources, legal review, billing, or some other associated capacity. The vaccine requirement also extends to federal and federal contractor employees who work remotely or telework, as well as those employees who have recovered from COVID-19.
Among other topics, the recently-published guidance requires that federal agencies and federal contractors ensure that employees and visitors comply with published CDC guidance regarding masking and physical distancing requirements in federally controlled workplaces and covered contractor workplaces, including outdoor workplaces. The guidance also states that federal agencies may ask visitors or onsite federal contractor employees to fill out and show a Certification of Vaccination form (click here) when they enter a federal building or federally controlled indoor worksite, although the agencies do not intend to collect or maintain the forms. If the visitors or federal contractor employees decline to fill out a Certification of Vaccination form, they may be required to show proof of a negative COVID-19 test result from within the previous three days before entry.
Federal contractors also are required to designate a person to coordinate COVID-19 workplace safety efforts at federal contractor workplaces.
As a reminder, the Cal/OSHA ETS cover masking and safety measures required in California workplaces, as do health orders related to COVID-19 issued by the California Department of Public Health (CDPH) and local city, county and state jurisdictions. Employers with workplaces in California must comply with the most protective set of safety measures applicable to their workplace.
The Centers for Medicare & Medicaid Services (CMS) will issue emergency regulations that 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 rule is expected to apply to clinical staff, volunteers, and individuals providing services, as well as other workers who are not directly involved in patient care. This rule is in addition to the previous CMS vaccination requirement imposed on nursing home facilities.
CMS is developing an Interim Final Rule on this topic that is expected to be issued in October 2021. These requirements are expected to cover a majority of health care workers across the country and approximately 50,000 health care providers.
As you will recall, the CDPH has already ordered that most California health care facilities must require vaccinations of their employees pursuant to CDPH Orders issued July 26, 2021 and August 5, 2021. For further information about these CDPH orders, please see previous legal updates from LightGabler here and here.
President Biden also announced a vaccination requirement for teachers and program staff at Head Start and Early Head Start programs, teachers and child and youth program personnel at the Department of Defense (DOD), and teachers and staff at Bureau of Indian Education-operated schools. The Department of Health and Human Services (HHS) will initiate rulemaking to implement this policy for Head Start and Early Head Start programs, and vaccinations are expected to be required by January 2022.
California law already has issued regulations requiring verification of vaccination status of individuals working or volunteering in certain school settings, and weekly testing of those who are not fully vaccinated. On August 11, 2021, the CDPH issued an order that all public and private schools serving students in transitional kindergarten through grade 12, must verify the vaccination status of all paid and unpaid adults serving in school settings, and have a plan in place for testing and tracking test results for those not fully vaccinated, by no later than October 15, 2021. For further information about this CDPH order, please click here and see LightGabler's legal update on this issue here.
For the remaining $150 billion in loanable funds still available through the COVID Economic Injury Disaster Loan (EIDL) program, President Biden said that the Small Business Administration will take the following steps:
For PPP borrowers with loans of $150,000 or less, the SBA’s new process involves sending a pre-completed loan forgiveness application form to the borrower, who can review and sign the application form and send it back to the SBA. The SBA then works with the lender to complete the forgiveness process.
According to the Administration, this new process began in August 2021, and qualifying small businesses who have used this process have spent an average of six minutes completing the application. The majority of applicants have completed the process on their mobile phone.
President Biden also is requesting that entertainment venues like sports arenas and large concert halls require that their patrons be vaccinated or show a negative test for entry.
President Biden also announced a number of other measures that the Administration will take to decrease the spread of disease, including the following:
Additional information about President Biden’s COVID-19 action plan can be seen here.
As always, employers are cautioned to check their local, city or county rules, the Cal/OSHA ETS and any CDPH guidance on COVID-19 issues that arise in their workplaces. If any of these rules are more restrictive than the federal standards under President Biden’s plan (once issued), the more restrictive rule will control.
For questions regarding COVID-19 or to address other employment law issues, contact the employment attorneys at LightGabler.