President Biden Announces Six-Pronged Plan to Combat COVID-19, With Implications for Both the Private and Public Sector

President Biden yesterday afternoon announced a comprehensive, six-part strategy to combat COVID-19, aimed largely at vaccinating the 25% of the eligible population who remain unvaccinated. The first part of his plan has numerous implications for private sector employers across all industries. 

Specifically:

• The President directed the Department of Labor (“DOL”) to issue an emergency rule requiring private employers with 100 or more employees to mandate that their employees get vaccinated or submit to weekly COVID-19 testing. When he first took office, President Biden directed the DOL’s Occupational Safety and Health Administration (“OSHA”) to review the need for an emergency temporary standard (“ETS”) related to COVID-19 by March 15, 2021. OSHA responded by updating its COVID-19 guidance and issuing an ETS limited to employers in the healthcare industry. This latest announcement directs OSHA to go much further, implementing an ETS that would impact over 80 million private sector workers. The President noted that this policy of requiring vaccination or, alternatively, testing, is in step with what several major U.S. companies have already done. Notably, the announcement did not set a deadline for OSHA to implement the ETS.
• Of particular significance to federal contractors, the President’s remarks, amplified by two Executive Orders issued last evening, announced not only that his Administration would require all federal executive branch workers to be vaccinated (Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees | The White House), but he directed that this standard be extended to employees of certain contractors and certain subcontractors that do business with the federal government (Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors | The White House). Testing as an alternative to vaccination may no longer be an option in particular circumstances, as final details have yet to be released. His announcement, and subsequent Executive Order left open a number of questions, including which contractor employees will be subject to this mandate (e.g., whether it applies to employees who provide support for contract performance) as well as subcontractor obligations. The Executive Order identifies a September 24, 2021 deadline by which the Safer Federal Workforce Task Force will provide further guidance. This guidance is expected to be comprehensive, as the President’s message was clear: “If you want to do business with the federal government, get your workers vaccinated.” 
• The President also announced that workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, would be required to be vaccinated. Previously, only workers in nursing homes were required to satisfy this requirement.
• To facilitate this vaccination effort, President Biden further directed OSHA, through the ETS, 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. As of now, only a few jurisdictions—for example, New York—require paid time off specifically for vaccination. In his remarks, the President also made mention of potentially expanding this to include leave to take a loved one to get vaccinated, although whether that will be included in the ETS remains to be seen. Other open questions remain for OSHA to address, such as exactly how much time off is required and whether this leave can be satisfied by existing sick or other paid time off policies.
• President Biden also encouraged large entertainment venues, such as sports and concert arenas, to require proof of vaccination or negative test results as a condition of entry.

The remaining five parts of the Biden Administration’s plan focused on (1) protecting the vaccinated by, among other things, preparing for the administration of booster shots; (2) keeping schools safely open through a number of safety measures; (3) increasing the availability of testing, including a partnership with Walmart and Amazon (among others) for at-cost at home testing kits; (4) protecting the economy, including by streamlining the Paycheck Protection Program (PPP) loan forgiveness program; and (5) improving care for those infected by COVID-19 by, for example, increasing support for hospitals and increasing supply and distribution of the monoclonal antibody treatment.

Private employers impacted by this directive should be prepared to implement compliant policies and practices, monitor the situation, with an eye towards the forthcoming OSHA ETS and the guidance expected from the Task Force. Crowell & Moring will be monitoring the situation closely and providing updates as they become available.