President Biden Announces Sweeping New Requirements Aimed at Combatting the Surging COVID-19 Delta Variant

Oliver R. Katz, Brooke T. Iley, and Jason E. Reisman

With COVID-19 surging once again across the United States, yesterday, September 9, 2021, President Joe Biden announced a six-part plan for tackling the rising number of COVID-19 cases throughout the country. President Biden’s announcement includes a mandate that large employers require vaccines or weekly COVID-19 testing for their employees, as well as a mandate that all federal workers and contractors be vaccinated. Estimated to affect 100 million American workers, here are some important details employers should know:

      • All employers with 100 or more employees must ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative COVID-19 test at least on a weekly basis prior to coming to work.
      • Covered employers are required to provide paid time off to employees to get vaccinated or recover from any side effects of getting vaccinated.
      • All federal executive branch workers and employees of contractors that do business with the federal government are required to be vaccinated, with no ability to opt out and instead be subject to regular testing (Blank Rome’s government contractor FAQs about the executive order can be found on our Government Contracts Navigator blog).
      • Large entertainment venues like sports arenas, large concert halls, and other venues where large groups of people gather are asked to mandate that their patrons are vaccinated or show a negative COVID-19 test for entry.
      • Healthcare facilities receiving Medicare and Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, must vaccinate their employees.
      • The vaccination requirement for nursing home facilities will now apply to nursing home staff as well as staff in hospitals and other Centers for Medicare and Medicaid Services regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are involved in direct patient, resident, or client care.

Here are some other important FAQs regarding President Biden’s Announcement:

When does the mandate for large employers take effect?

The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is expected to issue an Emergency Temporary Standard (“ETS”) “in the coming weeks” outlining employer requirements and hopefully setting a clear implementation date. Numerous states and union leaders, however, have already voiced opposition and will likely file legal challenges to OSHA’s authority to issue such a rule, which may delay the ETS from taking effect. Of course, until the ETS is published, the detailed logistics for implementation and compliance remain largely unknown.

Which employers are not covered by the OSHA ETS?

Smaller, private businesses and employers with fewer than 100 employees will not be included in the mandate.

Is there a penalty for covered employers who do not comply with the ETS?

Yes, employers who do not comply with the ETS requirements are expected to face a fine of up to $14,000 per violation.

While employers wait for OSHA to release the ETS, Blank Rome is ready to assist employers with ensuring they are implementing best practices to keep the workplace safe, including but not limited to:

      • implementing vaccination tracking for all employees;
      • maintaining policies to address data privacy concerns;
      • developing incentives for vaccination to bolster compliance prior to any mandate;
      • reviewing paid time off plans ahead of any requirement to provide the same;
      • developing plans to cover any potential COVID-19 testing costs; and
      • ensuring there are policy and accommodation procedures in place to manage compliance with current guidance and any future requirements that may be mandated.

Blank Rome will monitor the release of OSHA’s Emergency Temporary Standard and provide employers with additional guidance on the requirements and unanswered questions as they are available.

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