Sept. 13, 2021
President Biden announced his Administration’s “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan” on Sept. 9, a new six-prong national strategy to combat the COVID-19 pandemic. As part of this strategy, the president focused largely on unvaccinated American workers and touted several new executive orders and forthcoming changes to current federal regulations, including:
The orders affecting federal contractors are currently in effect. Those employers should consider whether any existing vaccination policy should be modified or whether a new policy should be created. Carve-outs or exceptions for certain federal contractors are included in these orders, including contracts or agreements made under the Indian Self-Determination and Education Assistance Act, contracts or subcontracts with a value equal or less than the simplified acquisition threshold defined in 2.101 of the Federal Acquisition Regulation, employees performing work outside of the U.S, or employees working on subcontracts solely for the provision of products. Medicare and Medicaid-certified facility employers are not currently subject to an order but may want to consider reviewing their vaccination policies, if any, and whether it is appropriate prior to implementation of an order to deploy resources to supporting employee vaccinations.
Employers with 100 or more employees should closely monitor ongoing developments and any announcements on this issue from OSHA. Prior to the issuance of an executive order, these employers may consider reviewing existing vaccination, testing, and paid time off policies in order to prepare for any OSHA mandates.
Other policies that employers may consider reviewing and revising are those addressing employee accommodation requests. In the event that vaccination and testing mandates are implemented, employers may see a rise in employees seeking exemptions for medical reasons/accommodations from the requirements under the Americans with Disabilities Act (“ADA”) or the prohibition on religious discrimination under Title VII. Employers may want to begin analyzing what types of accommodations to recognize and how to implement the accommodation policy in a consistent manner. These considerations take on a heightened importance in light of the weekly fines contemplated by the forthcoming OSHA rules on mandatory vaccinations.
Employers may want to consider taking the following steps while we await further guidance from federal agencies:
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.