An executive order issued on September 9, 2021 orders the following:
1. In the private sector, the Plan directs OSHA to develop an Emergency Temporary Standard (ETS) that will require all employers of 100 or more employees ("covered employers") to make sure employees are fully vaccinated or taking a weekly Covid test before entering the workplace.
2. Employees with bona fide medical documentation preventing vaccination and those with sincerely-held religious beliefs will continue to be accommodated under Title VII and the ADA.
3. The ETS will require covered employers to provide PTO to get vaccinated and recover from any side effects.
4. In the government sector, all executive branch employees must be vaccinated. Most other federal employees are required to be vaccinated as well. Federal employees may not "test" out of vaccination under the Plan, with exceptions as allowed by law. Certain federal employees, including all U.S. postal workers, may be exempted from the mandate.
5. For healthcare employers, vaccination will be required a condition for continued federal funding. Previously, this applied only to nursing homes, but with this Plan, it will apply to all healthcare providers.
6. Staff in federally-run schools, like Head Start programs, must be vaccinated. The Plan requests, but does not mandate, that all states mandate vaccinations for all school employees.
7. The Plan "calls on" sports arenas, large concert halls, and like large entertainment venues must require patrons to show proof of vaccination or a recent negative test before being allow to enter.
The Plan also provides for additional federal assistance to businesses including long-term, low-cost loans that can be used to hire or retain employees, buy equipment or inventory, or pay off higher-interest debt, with no repayment for two years. In addition, small businesses can apply for additional SBA loans.
The Plan calls for a two billion dollar investment in rapid and at-home tests. Medicaid will be required to cover them.
Multiple judicial challenges are expected from different groups because OSHA traditionally issues an ETS for six months if "necessary to protect workers from grave danger." There have only been a handful of such ETSes ever issued.
Impacted employers should seek the advice of counsel as soon as possible.
We will keep you apprised on developments.