On September 9th, the President announced a COVID-19 Action Plan (the “Plan”) and released two orders that contain surprisingly broad measures. The Plan will impact many businesses and organizations across the nation.
Of particular note is:
1. Large Private Employer Testing Mandate. According to the announcement (no executive order or other binding authority exists yet), OSHA will issue an emergency temporary standard to implement a rule requiring all employers with more than 100 employees mandate that their employees produce a negative COVID-19 test result before coming to work unless the employer has “ensured” the employee is fully vaccinated. To be clear, there is no indication large employers must mandate the vaccine. Some may choose to do so to avoid the headache of collecting test results. It was also announced that OSHA will release a requirement that these larger employers pay for time off to get the vaccine and recover from side effects. The Plan does not indicate when OSHA may implement the rule or detail the proof employers will need to view or collect to establish that employees are fully vaccinated. It would also appear that because the requirement of vaccination or testing applies to those “coming to work”, remote workers would not be subject to the requirement. While the Plan requires employees to receive paid time off to get the vaccine and recover, it does not indicate if such time is in addition to other available paid time off which the employer could use for the vaccination.
2. Federal Contractor Vaccine Mandate. Under the executive order released September 9, 2021, the Safer Federal Workforce Task Force (“Task Force”) will release guidance regarding COVID safety measures by September 24, 2021 (the “Guidelines”). View the executive order here. The Federal Acquisition Regulation will be amended to require all new or renewed federal contracts contain a clause requiring the contractor to follow those Guidelines (the “Clause”) and by October 8, 2021, agencies are required to take steps to require that the contracts entered into or renewed after October 15, 2021 that are not subject to Federal Acquisition Regulation include the Clause. Federal contracts and renewals covered by the order include:
b. a contract for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
d. a contract 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.
There are many unanswered questions, some of which we expect to be resolved in some part in the coming weeks. It is also anticipated that there will be some lawsuits filed to attempt to block parts of the Plan. Businesses and other organizations are encouraged to coordinate with their counsel regularly when attempting to implement policies to comply with the Plan. Click here to view the full COVID-19 Action Plan.
The Employment & Labor Practice Group at Partridge Snow & Hahn is available to answer questions about the Plan. For additional information and resources visit the firms COVID-19 Advisory Group page.
