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:
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- 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.
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Protection of the workforce is a major focus of the Biden Administration. Rather than attempting to pass new legislation or amend existing statutes, the path of least resistance in the short term appears to be the use of executive orders to implement or, as here, rescind Trump Administration Executive Orders and put into effect many of the same policies as the Obama Administration. The starting point for the Biden Administration is to take the steps to implement rules with respect to the federal workforce and the workforce performing federal government contracts.