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Do New Executive Orders Create a Vaccine Mandate for Employers?

On September 9, 2021, the White House issued two executive orders* and announced additional forthcoming rules regarding COVID-19 safety requirements as part of its Path Out of the Pandemic Action Plan (Action Plan).

What does this executive order mean for employers and creating vaccine mandates?

All Employers with 100+ Employees

President Biden announced that he instructed the Occupational Safety and Health Administration (OSHA) to draft a new emergency rule requiring private employers with 100+ employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Additionally, employers must provide their workers with paid time off to get vaccinated against COVID-19 and recover from any vaccination-related side effects. OSHA is expected to issue the emergency rule in the coming weeks, which will reportedly include a required $14,000 fine per violation for failure to comply.

Healthcare Facilities

The Action Plan states that the Centers for Medicare & Medicaid Services (CMS) are taking action to require COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement including, but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The requirement will apply to nursing home staff, hospital and clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. CMS is developing an Interim Final Rule with Comment Period that will be issued in October. However, CMS is urging facilities to begin requiring vaccination immediately.

Federal Contractors and Subcontractors

Citing economy and efficiency in federal procurement by decreasing worker absence, reducing labor costs, and improving worker efficiency on federal contracts, a new Executive Order requires that all contracts (including contractual options and contract-like instruments) with federal contractors and subcontractors, entered into, extended, renewed, or exercised on or after October 15, 2021, have provisions stating that they comply with all COVID-19 safety protocol guidance published by the Safer Federal Workforce Task Force (Task Force). Where federal agencies issued solicitations prior to September 9th and entered into a new contract within 30 days of September 9th, those contracts are strongly encouraged to comply with the executive order requirements; however, any extension, renewal, or option of those contracts must comply with the new rules. For all existing contracts, solicitations issued between September 9th and October 15th, and contracts issued between September 9th and October 15th, federal agencies are strongly encouraged to ensure that the required safety protocols are consistent with the new executive order.

The Task Force guidance is subject to the Office of Management and Budget’s (OMB) approval and must be published by September 24, 2021. Although not stated in the executive order itself, the Action Plan indicates that the guidance will include a vaccine mandate, which presumably includes reasonable accommodations based on disability, qualified medical condition, or sincerely held religious beliefs. The contractual requirements will apply to any workplace locations in which an individual is working on or in connection with a federal government contract. The Executive Order specifies the types of federal contracts the COVID-19 safety protocols will apply to, and who will be exempt.

Covered

Exempt

  • Services, construction, or leasehold interest in real property
  • Services covered by the Services Contract Act
  • Concessions, including concessions contracts excluded by DOL regulations
  • Federal property or lands offering services to federal employees, their dependents, or the general public
  • Grants
  • Agreements with Indian Tribes
  • Contracts/subcontracts equal to or less than the simplified acquisition threshold
  • Employees who perform work outside of the U.S. or its outlying areas
  • Subcontracts solely for the provision of products

Regardless of the Task Force guidance, applicable employers will still have to comply with any state or municipal safety protocols with stronger protections.

Federal Employees

Citing the need to stop the spread of COVID-19, a new Executive Order requires executive branch federal agencies to issue mandatory vaccination requirements. The Task Force will issue guidance by September 16, 2021 for federal agencies to implement the order. Federal agency requirements must still comply with applicable law, including reasonable accommodation requirements. Implementation is also subject to the availability of appropriations, which will likely be assessed by each agency as they prepare their respective policies. The Executive Order does not address a deadline for agency compliance, which is likely to come from the Task Force guidance.

Other Logistical Changes

To support the effort of combating COVID-19 across the country, President Biden also announced that at-home rapid tests will be available at a 35% price reduction by the end of the week from Walmart, Amazon, and Kroger. The Transportation Security Administration (TSA) will double fines on individuals who refuse to wear a mask on airlines and other forms of transportation. Further appeals to safety include encouraging large entertainment venues to require proof of vaccination or negative test for entry, urging schools to require that staff be vaccinated, offering COVID-19 testing, and implementing mask mandates. Additionally, vaccine booster shots are expected to be available to vaccinated individuals the week of September 20.

Next Steps:

Employers should expect further clarification of these rules as regulations and guidelines are issued in the coming weeks, including effective dates and documentation guidance. It is unclear whether anticipated legal challenges will be successful and alter implementation. In the meantime, applicable employers should prepare to comply with the new rules and continue looking for updates on this emerging issue.

For additional insights on vaccine mandates and your responsibilities as an employer, view the on-demand advisory session Mandates, Masks and More: The Latest on COVID-19 Vaccines in the Workplace.

 
*It’s important to understand what an Executive Order is and can do. The President’s Executive Order privilege, as authorized by the Constitution, allows the President to issue federal directives to the agencies that are governed by the Executive Branch, e.g. Treasury, Department of Health and Human Services (HHS), Department of Labor (DOL), etc. or provide an interpretation of policy. It does not have force of law but directs agencies on how to carry out or enforce the current law or manage resources. These Executive Orders often result in new or revised regulations from the affected agency(ies).

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