On September 9, 2021, President Biden announced impending COVID-19 vaccine requirements that will apply to federal workers, federal contractors, and private employers with more than 100 employees. If you are an employer in one of these categories, here is what you need to know:
Employers with 100 or More Employees – Vaccine/Testing Requirements Coming Soon
The Occupational Safety and Health Administration (OSHA) is in the process of developing an Emergency Temporary Standard (ETS) that will direct all employers with 100 or more employees to require employees to be either: 1) fully vaccinated or 2) to submit a weekly negative COVID test before coming to work. Employers must also provide employees with paid time off to get vaccinated and to recover from any side effects.
While we do not yet know all the details of the ETS, OSHA has indicated that the 100-employee requirement will be calculated on a company-wide basis. Additionally, the ETS will not apply to employees who work remotely.
The ETS will be effective as soon as it is published but can only be utilized for six months. After that time, it must be replaced by a permanent OSHA standard that has gone through the formal rulemaking process, including public notice and comment. This rule is expected to impact over 80 million workers.
Federal Workers – Must Be Fully Vaccinated By November 22, 2021
All federal employees need to be fully vaccinated by November 22, 2021. In order to meet this deadline, employees must have had their last dose of the vaccine no later than November 8, 2021. The vaccine requirement applies to all federal workers regardless of location, including employees who work remotely. Employees will be required to provide documentation that they have been vaccinated and will be subject to discipline and possible removal from federal service for refusing to obtain a vaccination. However, federal agencies will provide reasonable accommodations for employees who cannot be vaccinated because of a disability or a sincerely held religious belief, practice, or observance.
Federal Contractors – Vaccine Requirements Expected By September 24, 2021
According to the September 9, 2021 “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” federal contractors and subcontractors will be required to comply with forthcoming workplace safety guidance that the Safer Federal Workforce Task Force will issue by September 24.
Although the Executive Order does not explicitly mention vaccine requirements, President Biden’s announcement notes that the federal worker vaccine mandate will be extended to employees of contractors that do business with the government. Therefore, it is likely that the federal contractor requirements will mirror the current requirements for federal employees. The requirements will apply to any workplace locations in which an individual is working on or in connection with a federal government contract or contract-like instrument.
The upcoming safety guidance (and likely vaccine requirement) will apply to any new contract or new contract-like instrument, including a new solicitation, extension, renewal, or exercise of an option that meets any of the following criteria:
- A procurement contract for services, construction, or a leasehold in real property;
- A contract covered by the Service Contract Act (SCA);
- A contract for concessions;
- A contract in connection with federal property or lands offering services for federal employees, dependents, or the general public; or
- Subcontracts to executive-agency contracts for services.
However, the new safety requirements will NOT apply to:
- Contracts with Indian Tribes;
- Contracts with a value equal to or less than the simplified acquisition threshold (currently $250,000);
- Agreements involving employees performing work outside the United States; or
- Subcontracts solely for the provision of products.
Healthcare Workers – Interim Rule Expected in October
The Centers for Medicare and Medicaid Services (CMS) is in the process of developing an interim rule that will require workers at facilities receiving Medicare or Medicaid reimbursements to be fully vaccinated. The interim rule will build on the existing requirement for nursing homes and will apply to hospitals, dialysis facilities, ambulatory surgery centers, home health agencies, and other facilities participating in Medicare and Medicaid programs. CMS anticipates issuing the interim rule in October.