On September 9, 2021, President Biden announced a “Path Out of the Pandemic,” detailing the regulatory powers and actions his administration will use to increase the number of vaccinated Americans.
Currently, the outlined plan is advisory, while agencies develop more-detailed policies regarding compliance with certain directives.
The plan provides the following:
- Employers of more than 100 employees must require their employees to be vaccinated or require unvaccinated employees to produce a negative test at least weekly before coming to work.
- Federal workers and federal contractors must be vaccinated.
- Booster shots are now available to certain groups at no cost.
- Healthcare workers at Medicare- and Medicaid-participating hospitals and other healthcare facilities must be vaccinated.
- Employers with more than 100 employees must provide paid time off to their employees to get vaccinated.
- Large entertainment venues are requested to require proof of vaccination or testing for entry.
- Increased school safety measures
- Additional economic aid
Vaccination or weekly testing
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing an Emergency Temporary Standard (“ETS”), which is anticipated to require all employers with 100 or more employees to ensure their workplaces are fully vaccinated or require all unvaccinated workers to test negative for COVID-19 weekly before coming to work.
Paid Time Off
OSHA’s ETS is also anticipated to require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.
Vaccinations for all Federal Workers and Federal Contractors
All federal executive branch workers must be vaccinated. The President also signed an executive order requiring employees of contractors that do business with the federal government to be vaccinated.
In the meantime, employers should consider the following best practices when preparing for these new requirements.
- Consult with legal counsel and consider crafting a vaccine policy that considers exemptions for employees with qualified disabilities as defined under the Americans with Disabilities Act, as well as employees with sincerely held religious beliefs, as defined under Title VII of the Civil Rights Act.
- Communicate and administer the accommodation process consistently and thoughtfully, emphasizing individualized, confidential consideration of each request, and engage in the interactive process with the employee in considering the request.
- Review any collective bargaining agreements and relevant state laws.
- Ensure any testing protocols comply with applicable wage and hour laws, which provide that time spent receiving employer-required tests may need to be treated as compensable.
- Be prepared to respond to detailed questionnaires in the employment practices liability (EPL) underwriting and renewal process surrounding vaccine mandate protocols and corporate policies, as well as the implementation of those protocols.
For more information on how President Biden’s Executive Order or OSHA’s anticipated ETS may affect you or your business contact the attorneys at Rock Fusco & Connelly, LLC.