On September 9, 2021, President Biden announced "six broad areas of action" designed to curb the spread of COVID-19. The White House has published an outline of its "Path Out of the Pandemic" action plan here: https://www.whitehouse.gov/covidplan/. Below are the action items that will have a significant impact for many U.S. employers.

Key Announcements Affecting Employers

First, in the weeks to come, employers should expect the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) to develop a rule requiring all employers with 100 or more employees to ensure that 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. OSHA also has been directed to adopt a rule requiring such employers to provide paid time off for the time it takes for employees to get vaccinated or to recover if they feel ill post-vaccination.

Second, the President has called on the Centers for Medicare & Medicaid Services to take action to require COVID-19 vaccinations for employees in most healthcare settings that receive Medicare or Medicaid reimbursement. The heightened requirement will affect many employers in the healthcare industry, including hospitals, dialysis facilities, home health agencies, and other healthcare providers.

Third, President Biden signed an Executive Order applicable to federal contractors, which requires a COVID-19 Safety Protocol clause in "any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument," subject to certain exceptions. The precise content of the clause will be determined by guidance issued by the Safer Federal Workforce Task Force in the weeks to come and must be included in contracts made on or after October 15, 2021. Accordingly, federal contractors will receive notice of the heightened requirement, and its details, by way of their contract with the federal government.

Employer Takeaways

The White House estimated that its COVID-19 safety mandates will affect approximately 100 million American workers, roughly two-thirds of the U.S. workforce. In the weeks to come, expect the Biden administration and federal agencies to roll out more detailed guidance and rules. Several groups and coalitions have vowed to challenge the legality of these new requirements, but until those disputes are resolved, employers should play it safe and comply.

Employers implementing mandatory vaccination policies should be prepared to address employees who request accommodations due to a disability or on the basis of a sincerely held religious belief, including how to address whether a request is bona fide and what accommodations are necessary to provide. Since covered employees can opt for regular testing instead of the vaccine, it may be difficult for employers to take the position that they cannot accommodate a medical or religious exemption through regular testing. Employers also should develop a legally compliant procedure for confirming employees' vaccination status or test results and maintaining appropriate records of that information.

For unvaccinated employees who must produce a negative test result on a weekly basis, state or federal law could require employers to cover the costs of testing and pay employees for time spent undergoing such tests. Where an employee voluntarily chooses not to receive the vaccine without invoking any accommodation on the basis of a disability or religious belief, businesses in some states may not be required to compensate employees for testing time and the costs of tests. Many of these determinations must be made on a case-by-case basis and will depend on guidance yet to be issued. Employers may decide to adopt a policy mandating vaccines without an option for regular testing as an alternative in order to avoid the potential expense, administrative burden, and the precedent that testing may create for purposes of considering requests for accommodation.

Wilson Sonsini Goodrich & Rosati's employment law group closely follows developments involving COVID-19-related employment law issues. For more information, please contact Rico Rosales, Marina Tsatalis, Jason Storck, Rebecca Stuart, or any member of the firm's employment litigation practice.