By Brian M. Foley, Esq.

On September 9^th, President Biden announced his “Path Out of the Pandemic: COVID-19 Action Plan” (the “Plan”). As part of the Plan, the President signed Executive Order 14042, that requires all federal executive branch employees and all employees of federal contractors to be fully vaccinated against COVID-19. The Plan also calls for mandatory vaccination for all employees of private sector employers with 100 or more employees, and for all healthcare workers in settings that receive Medicare or Medicaid reimbursement.

Federal Employees

The Executive Order requires all federal executive branch employees to be fully vaccinated unless the employee is entitled to a legal exemption. There is no option for federal employees to obtain regular testing in lieu of being fully vaccinated. Federal employees must be fully vaccinated by November 22^nd.

 Federal Contractor

The Executive Order also mandates that all employees of contractors that do business with the federal government must be fully vaccinated. Again, there is no option for federal contractor employees to obtain regular testing in lieu of being fully vaccinated. The requirements apply to all federal contractors’ or subcontractors’ (“Covered Contractors”) employees in covered workplaces, even if such employees are not working on a federal government contract.

The Executive Order also directed the Safer Federal Workforce Task Force (the “Task Force”) to issue guidance on COVID-19 workplace safety protocols for Covered Contractors. On September 24^th, the Task Force issued its guidance, which included provisions requiring Covered Contractors to ensure that all employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation, because of a disability (which includes medical conditions) or because of a sincerely held religious belief, practice, or observance. The Covered Contractor must also ensure that all employees comply with masking and physical distancing requirements for individuals who are not fully vaccinated in covered workplaces prior to being fully vaccinated.

The Covered Contractor is required to review its employees’ documentation to prove vaccination status. The employees must provide the Covered Contractor employer with one of the following documents: a copy of the record from a healthcare provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813), a copy of medical records documenting the vaccination, a copy of immunization records from a public health or state immunization information system, or a copy of other official documentation verifying the name of the vaccine, dates of administration, and the name of the healthcare professional or clinic site that administered the vaccine. Digital copies of such records are acceptable. The Covered Contractor must also designate a person or persons to coordinate COVID-19 workplace safety efforts at the Covered Contractor workplace. Covered Contractor employees must be fully vaccinated by December 8^th.

Private Sector Employers

The Plan also calls for all private sector employers with one hundred (100) or more employees to ensure that their employees are fully vaccinated or produce a negative test result on a weekly basis, before going to work.

Private sector employers with 100 or more employees will be required to allow their employees paid time off to obtain the vaccines and paid time off to recover from any adverse side effects of receiving the vaccines. Employees that do not comply with the vaccine mandate or the paid time off requirements may be fined up to fourteen thousand dollars ($14,000) per violation. 

The Department of Labor, Occupational Safety and Health Administration (“OSHA”) is developing an Emergency Temporary Standard (“ETS”) to implement this requirement. The ETS is not available yet but is expected any day. It is estimated that the ETS will impact over 80 million employees. 

Healthcare Workers

As part of the Plan, the Centers for Medicare and Medicaid Services (“CMS”) is taking action to require COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement. These settings include hospitals, dialysis facilities, ambulatory surgery centers and home health agencies. This is in addition to the vaccine requirements for nursing facilities recently announced by CMS. The requirements will apply to hospital and nursing home staffs, clinic staffs, individuals providing services under arrangements, volunteers and staff who are not involved in direct patient, resident, or client care. The CMS regulations are expected to be published shortly.

The foregoing is a summary of recent federal developments related to mandatory vaccinations for COVID-19. There are also state requirements which may be different and must also be considered. We also expect litigation challenges over the mandates, as they are presented. As noted, the ETS for private sector employees and the new requirements for healthcare workers will be issued any day, and both are expected before the end of the year. Schenck Price will continue to monitor such developments and provide additional guidance as it becomes available. 

For more information, contact Brian M. Foley at bmf@spsk.com or at (973) 540-7326.