On September 9, 2021, President Biden announced his six prong COVID-19 initiative to boost vaccinations across the United States. Most notably for employers, the plan affects private employers who have 100 or more employees, as well as government contractors. Davenport Evans Employment lawyer Jean Bender explains that the plan includes the following:

Directs OSHA to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis. Directs OSHA to require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination. Failure to comply can result in fines of up to $14,000 per violation.

  • A new executive order that requires certain government contractors to comply with the September 24, 2021, guidance published by the Safer Federal Workforce Task Force. The guidance requires that covered contract employees be fully vaccinated by December 8, 2021, with accommodations for disability or sincerely held religious beliefs. The guidance also implements masking and physical distancing requirements.
  • Requires vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, similar to the guidance issued recently for nursing homes.
  • Requires vaccinations for federal employees in the executive branch.

The plan also calls on states to adopt vaccination requirements for all school employees as part of an effort to “keep schools safely open.”

In many respects President Biden’s plan raises more questions than it answers. Large employer obligations arising from OSHA’s ETS will be determined by the specific ETS provisions. Furthermore, it is not clear an OSHA ETS could survive a legal challenge. OSHA would need to prove “employees are exposed to a grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” Certain groups have already stated their intent to challenge this mandate.

It is important for employers to continue to monitor developments in this area and begin to consider how they will navigate the many legal and operational challenges posed by President Biden’s plan. These issues include determining whether the employer is a government contractor, workforce testing strategies, policy requirements, vaccination tracking, accommodations for religion and disability, as well as employee confidentiality and privacy issues.

The employment law attorneys at Davenport Evans are closely monitoring these issues and are ready to help you take steps to comply with these new requirements. Contact us at [email protected], 605-336-2880, or find a specific lawyer on the Our Lawyers page at dehs.com.

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