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Biden Announces Certain Companies Must Mandate or Test

Overview
President Biden has officially requested that OSHA put in place a new Emergency Temporary Standard which will take effect in the coming weeks. (This is NOT in place as of today, but we recommend you begin reviewing your options.) The order will impact employers with over 100 employees, requiring them to test unvaccinated workers weekly (at minimum). An accompanying rule will require these employers to pay for time off to get the vaccine (and for side effects). The standard will have fines for non-compliance.

What we do not yet know

  • Start Date.
  • When OSHA will provide the ETS and the exact provisions.
  • Whether testing must be employer-paid.
  • Whether time off may be paid through PTO/other company time off.

What to do next

  • Review worker attitudes toward vaccination, as well as the administrative difficulties of weekly testing. This should help you determine if you will mandate vaccination, reviewing ADA/religious requests as they arise, or if you will mandate testing and allow vaccinated to opt-out.
  • If necessary, begin talking to testing providers. Do not consider doing this program yourself through “home tests”; it is best to leave testing to the professionals.
  • Go to our COVID Toolkit (Templates and Tools) to review the Vaccination Planning Tool and other templates related to vaccine mandates.
  • Begin to prepare employees for the likelihood of your change in policy.

Other Requirements/Updates

  • Federal workers who have had up until now had the option to test instead of getting vaccinated will have 75 days to get vaccinated. Testing will no longer be an automatic alternative for them; however presumably exceptions will be made in the case of ADA or religious objections. This requirement for federal workers will also be extended to federal contractors who work onsite.
  • Head Start educators will also be required to be vaccinated.
  • Nursing homes were already required to vaccinate staff, and that directive was expanded to cover the majority of healthcare settings that participate in Medicare and Medicaid. The Centers for Medicare and Medicaid Services are working on an Interim Final Rule to be issued in October.
  • The plan calls for added federal personnel to support hospitals treating COVID-19 patients and a variety of other non-employment-related COVID-19 protections.
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