On September 9, 2021, the Biden Administration announced a new sweeping COVID-19 Action Plan (“Action Plan”) that, among other items, requires private employers with over 100 employees to ensure their workers are vaccinated or tested for COVID-19 on a weekly basis. These employers will also be required to provide paid time off for their employees to obtain the vaccine and recover from any side effects post-vaccination. The specific requirements and implementation deadline of the vaccine mandate have not yet been released, as the Action Plan directs the Department of Labor Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard for the mandate.
The Action Plan also includes provisions that extend federal financial support to small businesses and vaccination requirements for federal workers, federal contractors, most healthcare employees, and for large entertainment venues.
All Employers with 100+ Employees: The Action Plan directs the OSHA to develop an Emergency Temporary Standard (ETS) that would require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on, at minimum, a weekly basis before coming to work. This requirement is expected to impact over 80 million workers.
- Paid Time Off for Obtaining Vaccination: OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off to employees to obtain the vaccine and to recover if they are recovering post-vaccination. Though many states and local counties, including California, Illinois, and New York, have already passed laws requiring employers to provide similar paid time off, the Action Plan will create a uniform paid leave requirement nationwide.
The ETS and additional guidance is expected to be released in the coming weeks. Employers should carefully monitor when these rules are released, as they will significantly impact the specific requirements that must be implemented.
All Federal Workers and Federal Contractors: President Biden has signed two Executive Orders that require all federal executive branch workers and employees of contractors that do business with the federal government to be vaccinated.
Most Healthcare Employees: The Centers for Medicare and Medicaid (CMS) is taking action to require vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including but not limited to, hospitals, ambulatory surgical settings, and home health agencies. This requirement is in addition to the vaccination mandate for nursing home staff, hospital staff, and staff in other CMS-regulated settings, including staff who are not involved in direct patient, resident, or client care. These requirements are expected to cover a majority of the health care workers across the country.
Vaccination Requirement for Large Entertainment Venues: The Action Plan calls on entertainment venues, such as sports arenas, large concert halls, and other venues where large groups of people gather to require patrons to be vaccinated or show a negative test for entry.
Federal Financial Support for Small Businesses
New Support for Small Businesses Impacted by COVID-19: The Action Plan will strengthen the COVID Economic Injury Disaster Loan (EIDL) program, which provides long-term, low-cost loans. The Small Business Administration (SBA) will increase the maximum amount of funding that small businesses can borrow from $500,000 to $2 million, which can be used to hire and retain employees, purchase inventory and equipment, and pay off higher-interest debt. Small businesses will not be required to repay these loans until 2 years after they receive funding.
Streamlining the Paycheck Protection Program (PPP) Loan Forgiveness Process: Under the CARES Act, small businesses impacted by COVID-19 could apply for PPP loans that could be forgiven if certain requirements were met. To receive forgiveness, borrowers have to complete an application with their PPP lender. The Action Plan will make it easier for PPP borrowers with loans of $150,000 or less to get their loans forgiven. Under the streamlined approach, the SBA will send pre-completed application forms to borrowers who can review, sign, and send back to SBA, which works with the lender to complete the forgiveness process.
Employer Next Steps
At this time, key questions on the vaccine mandate remain, including how employer size will be determined, when the mandate will take effect, whether there will be exceptions for employees working remotely, and whether accommodations must be made for employees with disabilities or a sincerely held religious belief. Though specifics of the federal vaccination mandate have not yet been released, employers with more than 100 employees may want to begin preparing to implement the new requirements.
When developing a plan, employers should ensure compliance with federal workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), the Genetic Information Non-Discrimination Act (GINA), and Title VII of the Civil Rights Act (Title VII). The Equal Employment Opportunity Commission (EEOC) previously issued helpful guidance on the how employers can navigate vaccination and testing requirements in compliance with these laws.
Specifically, employers may want to consider the following when developing a vaccination policy (the below may be subject to change once OSHA guidance is released):
- Determine accommodations for religion, disability, and pregnancy.
- Generally, if employee COVID-19 vaccination is mandated, employers must provide reasonable accommodations for employees who do not obtain a COVID-19 vaccination due to a disability or sincerely held religious belief, unless providing an accommodation would pose an undue hardship on the operation of an employer’s business. We discuss these requirements in our prior article.
- Determine how weekly COVID-19 testing and vaccination will be administered.
- Employers can contract with a provider to administer the testing/vaccinations onsite or offsite or instruct employees to obtain testing/vaccinations through their own provider and request proof of testing/vaccination status. If testing is administered by the employer, employers should ensure the tests are accurate and reliable. If an employer provides the vaccine (either onsite or offsite through an employer-contracted provider), employers must consider compliance with ERISA, ADA, and GINA. We discuss these compliance considerations further in our prior blog.
- Determine how to collect, track and store vaccination status and results of COVID-19 testing.
- Under the ADA, employee vaccination status and COVID-19 test results must be kept confidential and stored separately from employee personnel records. To maintain confidentiality, employers should designate staff or hire a third-party vendor to collect and store documentation and testing information.
- Determine paid time off policies for employees obtaining the vaccine or recovering from side effects of the vaccine.
- Employers should develop a paid time off policy that complies with the federal OSHA standards (to be released) and any additional applicable state/local requirements. Employers may also want to develop a policy on how to handle leave that extends beyond federal and local requirements (e.g., provide additional paid COVID-19 leave or require the use of sick leave).
- Optional: Determine whether to provide any vaccine incentives or implement premium surcharges.
- Employers have the option of offering monetary or non-monetary incentives (e.g., paid time off in addition to that required under federal/state law) or a discount on healthcare premiums for vaccinated employees (i.e., a “premium” surcharge on unvaccinated employees who are participating in the employer’s group health plan). These incentives must comply with regulations governing wellness programs, including HIPAA, ADA, and GINA. For a discussion of the compliance considerations surrounding vaccine surcharges, see our prior article.
Please note that Sequoia Workplace has tech-enabled capabilities that provide a streamlined solution to address many of the compliance challenges mentioned above and it can help your business more confidently stay compliant. Sequoia Workplace offers vaccination & COVID-19 test tracking, employee desk reservations to manage office distancing requirements, QR code scanning for the in-office experience, and COVID-19 policy design capabilities for all 50 states. Please reach out to your Sequoia Client Service team to learn more about how Sequoia Workplace can assist you.