President Biden Issues Expansive Plan to Mandate Vaccines for Federal and Private Sector Employees

On September 9, 2021, President Biden announced a major initiative entitled the “Path out of the Pandemic.” The initiative includes an executive order requiring vaccinations for nearly all federal employees and contractors and millions of health care workers. Additionally, the plan instructs the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring businesses with more than 100 employees to mandate vaccinations among their workers or require weekly testing. This sweeping move by the White House will have widespread implications across the economy and our society.

Mandatory Vaccination and/or Testing for Businesses with More than 100 Employees

The plan directs OSHA to issue an ETS requiring employers with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated employees to provide a negative COVID test on a weekly basis. In addition, employers will be required to provide employees paid time off to be vaccinated. The White House estimates this mandate will impact over 80 million workers in the private sector. The anticipated ETS would mark the first time that OSHA has issued such a broad vaccination requirement. OSHA’s current bloodborne regulation does require certain employers to offer free Hepatitis B vaccinations, but employees can opt out of the vaccine.

While the White House announced the general parameters of the mandate, it leaves many questions that will hopefully be answered in the coming days. Here are a few of the many issues we are monitoring:

• Time to Issue the ETS: While the vaccine mandate is being issued as an ETS, which allows OSHA to bypass the normal process for promulgating a rule, it will still take time for OSHA to issue the standard. For example, while the administration directed OSHA to issue standards relating to COVID-19 shortly after President Biden took office in January, OSHA did not issue its ETS regarding COVID-19 precautions for healthcare employees until June 2021.
• Time to Comply After the ETS Is Issued: The law does not require OSHA to allow time for public comment before the ETS takes effect. Consequently, employers will likely learn of the details of the ETS only once it is published. Given the “emergency” nature of the order, OSHA will likely provide only a short window for employers to comply after the ETS is issued.
• Coverage: While the White House summary specifies that the ETS will apply to employers with 100 or more employees, it does not specify how that threshold is counted. For example, do temporary workers or contractors count toward the threshold? The announcement also did not say whether or to what extent the law would apply to remote workers or workers who may work alone in isolated locations where they are unlikely to be exposed to others.
• Legal Challenges: Opponents of the forthcoming vaccine rule vowed to challenge it almost immediately after the White House announcement. While federal courts have generally rejected constitutional challenges to vaccine mandates at the state and local level, it is not clear how federal courts will view the attempt to impose a mandate at the federal level through OSHA. Any individual “adversely affected” by an OSHA ETS may raise a legal challenge in federal court that could result in a stay of the rule. For any OSHA ETS to stand, OSHA must demonstrate that employees were exposed to “grave danger” and that the ETS was necessary to protect employees from such danger. According to the Congressional Research Service, “in the nine times OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.” Lawsuits could also challenge OSHA’s authority to require employers to provide employees paid leave time to get vaccinated. Several Republican governors have already promised that their states will sue to block the vaccine requirement.
• Exemptions: As has already happened in the case of previously announced employer vaccine mandates or state ordered mandates, some employees subject to the new vaccine requirements will inevitably argue that they should be excused from complying for medical or religious reasons. The option to submit to testing in lieu of vaccination may make it difficult for employees to claim complete medical exemption from the policy. Employees who object to both vaccination and testing on religious grounds may pose a more difficult issue, especially in certain states. OSHA will likely have to address these issues in some way, though exactly what balance the agency will strike or how this may interact with other laws at the state and federal levels is yet to be determined.
• Collective-Bargaining: Employers with unionized employees may be obligated to bargain with unions over the effects of implementing these policies. Potential subjects of bargaining may include how testing programs will be implemented and what consequences employees may face for failing to comply with the vaccine or testing requirements.

Federal Employees and Contractors

President Biden previously ordered federal employees of certain departments and employees of federal contractors working on-site at federal facilities to be vaccinated or face weekly testing requirements. The new order announced yesterday will require nearly all executive branch employees to receive the COVID-19 vaccine The new mandate will also be extended to most federal contractor employees, regardless of work location, as contractors extend, renew, or accept new contract with the federal government.

The executive order does not specify details of the new mandate, instead directing the Safer Federal Workforce Task Force to issue guidance on definitions, compliance protocols, and exceptions by September 24, 2021.

According to the executive order, the new vaccine requirement must be inserted into new contracts or “contract-like instruments” entered into on or after October 15, 2021, as well as any existing contracts or contract-like instruments extended, renewed, or having an option exercised on or after that date. Agencies are also encouraged to include the vaccine mandate in contracts awarded before the effective date.

The executive order will apply to the same types of contracts and “contract-like instruments” that are subject to the recently proposed rules requiring contractors to implement a $15 per hour minimum wage. A contract is covered under the vaccine mandate if:

          (i)    it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
          (ii)   it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
          (iii)  it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
          (iv)   it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

The order does not apply to grants, to contracts or subcontracts at or below the “simplified acquisition threshold” ($250,000 for most contacts), to employees performing work outside of the U.S. or its outlying areas, or to subcontracts solely for the provision of products.

According to the White House announcement, all covered workers who are not eligible for the limited religious or disability exemptions are expected to be fully vaccinated within 75 days.

Like the anticipated OSHA requirements for the private sector, it is virtually certain that opponents will seek to block these new vaccine requirements for federal employees and contractors.

Health Care Workers Receiving Federal Funding

The administration also announced that the Centers for Medicare and Medicaid Services (CMS) will issue emergency regulations expanding the existing vaccine mandate for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings, home health agencies, and others, as a condition for receiving Medicare and Medicaid funds. CMS reports that it is developing an Interim Final Rule with Comment Period to be issued in October 2021. In the meantime, the agency urges employees in covered facilities who are not currently vaccinated to “begin the process immediately,” and urges facilities to “use all available resources to support employee vaccinations, including employee education and clinics, as they work to meet new federal requirements.” This requirement is estimated to cover approximately 50,000 health care providers employing more than 17 million workers.

Steps for Employers in Anticipation of the New Mandates

Unfortunately, employers will have to wait for further guidance from OSHA, the Safer Federal Workforce Task Force, and CMS to answer key questions, including guidance on how to implement these changes.