President Biden's September 9, 2021 COVID-19 Action Plan
September 15, 2021
On September 9, 2021, President Biden announced a plan promoted to both protect lives and allow the economy to steadily improve. As of that time, government health authorities were reporting that more than 650,000 people in the U.S. had died from COVID-19, and more than 40.8 million cases have been reported. Meanwhile, about 53.7% of those eligible have been fully vaccinated, and about 63% have had at least one dose.
The new plan largely focuses on private employers, because the U.S, Department of Labor’s Occupational Safety and Health Administration (OSHA) has authority to regulate workplace safety for those entities.
OSHA does not regulate state governments or political subdivisions (like school districts, cities, villages, townships, etc.) However, other federal agencies, such as the Department of Education and Department of Health and Human Services, do have some authority over some of those state and local entities.
As a final introductory note, the federal Equal Employment Opportunity Commission (EEOC), has the authority to initiate and review complaints about public or private employers with at least 15 employees. EEOC Guidance has said that COVID-19 is a direct threat to others in a workplace. (“An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because…their presence would pose a direct threat to the health or safety of others.”) Therefore, the EEOC has said that, within certain parameters and by providing for accommodations that may be required under Title VII or the Americans with Disabilities Act (ADA), an employer may choose to implement a “mandatory” vaccination requirement. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (May 28, 2021) The new COVID-19 Action Plan will now require some large employers to require either vaccination or weekly testing for all employees.
Mandate for Private Employers with at least 100 Employees
President Biden’s announcement said that OSHA will be developing an Emergency Temporary Standard (ETS) that will impose a vaccination requirement for employees of these large employers. While this Large Employer ETS is not yet published, we can expect it soon will be. Meanwhile, we may be able to glean some likely terms by looking at the ETS that OSHA issued on June 28th for healthcare workplaces.
To determine which employers are likely to be covered by the mandate, we can look to how employees were counted under the healthcare ETS. That ETS required employers to count all employees nationwide – including full-time, part-time, temporary and seasonal – rather than separately counting employees at individual facilities.
Large employers will be required to support employee vaccination with paid leave. The healthcare ETS set parameters for the paid leave that it would deem compliant with the mandate – up to 4 hours of paid leave per dose for an employee to get vaccinated (if they need to travel to a vaccination site), and 8 hours per dose for employees to recover from side effects (although OSHA recognized some people may experience longer-lasting side effects). The healthcare ETS gave 14 days from its publication for employers to begin complying with the vaccination requirements, and provided for OSHA inspection to induce compliance. It is reasonable to expect similar terms will be forthcoming for private employers with at least 100 employees. Costly fines are also anticipated for each violation.
Executive Order Requiring Vaccination of Employees of Federal Agencies and Contractors
On September 9th, the President issued two Executive Orders. One imposed a vaccine mandate for employees of federal agencies. A second Executive Order will extend the mandate to employees of federal contractors.
The Order regarding federal employees recognizes that the health emergency declared in January of 2020 is continuing, and that the FDA has now approved Pfizer’s vaccine and has authorized the Moderna and J&J vaccines for emergency use. The Order requires federal agencies to develop programs to vaccinate all federal employees. Unlike the plan for large private employers, the Order regarding federal employees does not provide for an alternative of weekly testing rather than vaccination. However, it does state that the mandate is to comply with other federal laws. Therefore, one can expect some federal employees to seek accommodations for disabilities or religious reasons.
The second Executive Order requires federal agencies to ensure that contracts include a clause specifying that contractors’ (and any tier of subcontractors’) workplace locations will comply with the Safer Federal Workforce Task Force Guidance to promote economy and efficiency in federal contracting. State and local governments can require more protective protocols than are required by the Task Force Guidance. The new contract clauses will be required in all federal agency contracts entered into on or after October 8, 2021.
The updated Task Force Guidance notes the need for different safety protocols for fully vaccinated individuals versus others. Thus all federal employees and contractors will be required to “attest to the truthfulness” of their response when questioned about their vaccination status, and all agencies must ask about the vaccination status. All visitors to federal buildings are also to be asked about their vaccination status; those who decline to respond must provide proof of a negative COVID-19 test from no later than 3 days prior to entry to a federal building. Federal agencies are required to establish different masking and distancing safety protocols for persons who are fully vaccinated, partially vaccinated, unvaccinated or refusing to respond.
While the President announced his desire to keep schools open safely, he did not announce new requirements applicable to most schools. He noted that the previously passed American Rescue Plan (ARP) included $130 billion to “help schools reopen, accelerate students’ academic growth, address inequities exacerbated by the pandemic, allow local school districts to implement CDC-recommended COVID-19 prevention strategies.”
However, the Action Plan will require teachers and staff at Head Start and Early Head Start programs to get vaccinated. To that end, the President has directed the U.S. Department of Health and Human Services (HHS) to initiate rulemaking to implement this new policy. The same policy will be applied at K-12 schools operated by the Department of Defense and the Bureau of Indian Education.
Noting the particular risks for elementary school children who are too young to be eligible for vaccination, the President encouraged states to adopt vaccine requirements for all school employees (currently only nine states and the District of Columbia have such requirements).
To counter some states’ efforts to prohibit schools from imposing universal masking requirements by threatening loss of state funds, schools will be allowed to use their ARP funds to replace funds withheld or withdrawn by a state. School districts can apply to the U.S. Department of Education (DOE) to restore funds withheld by states from districts that have implemented strategies to prevent the spread of COVID-19 in schools.
DOE was also directed to use all available tools to ensure students have the opportunity to participate in full-time in-person learning. Toward that end, DOE has already initiated investigations in at least five states to determine whether prohibitions on mask mandates discriminate against students with disabilities, preventing them from safely accessing in-person education.
Finally, the President called on all K-12 schools to establish regular COVID-19 screening testing for all students, teachers and staff, consistent with CDC guidance. The statement noted that CDC’s current guidance is to offer screening testing to students who have not been fully vaccinated when community transmission is at moderate, substantial, or high levels; and, to offer screening tests to all teachers and staff who have not been fully vaccinated regardless of the level of community transmission. As of this publication, the entire state of Ohio is at a high transmission level.