10 September 2021

New Vaccine Mandates and Your Workplace: What We Know & What We’re Working to Find Out

Yesterday the White House announced several new significant initiatives to address the COVID-19 pandemic.  Most notably, the Biden administration directed the Department of Labor to develop an emergency rule that will require all employers with 100 or more workers to ensure that their workforce is either fully vaccinated or undergoes weekly testing, and that employers must provide paid time off for employees to get the vaccine and recover from any side effects.  The administration indicated their intent to issue the full rule in a matter of weeks, with an effective date soon after.

Thursday’s White House announcement also included the following new directives:

Healthcare Facilities

  • The Centers for Medicare & Medicaid Services (CMS) were directed to develop regulations to require COVID-19 vaccination for workers in most healthcare settings that receive payment from federal health programs such as Medicare and Medicaid.
  • The new regulations will at a minimum include workers in hospitals, dialysis facilities, ambulatory surgical settings, home health agencies and nursing homes.
  • The vaccine requirement is expected to apply to clinical staff, contractors, volunteers and staff regardless of whether or not they are involved in direct patient, resident or clinical care.
  • CMS has stated it will issue an Interim Final Rule with a Comment Period in October. In the interim CMS encouraged facilities to use all available resources to encourage employee vaccinations, including by holding education sessions and vaccination clinics.
  • CMS has not identified an enforcement mechanism or penalties for facilities that fail to comply, but made it clear that certified Medicare and Medicaid facilities will be expected to comply with the new vaccination requirement.

Federal Contractors

  • President Biden also issued an Executive Order aimed at federal contractors building off an August directive that required vaccination or weekly testing for federal contractor employees who are working onsite at a federal facility.
  • Yesterday’s Executive Order obligates certain types of federal contractors to comply with protocols to be developed by the Safer Federal Workforce Task Force (to be published by September 24), but it doesn’t yet explicitly require vaccination status or testing.
  • Nevertheless, it is anticipated that the protocols will involve mandatory vaccination or weekly testing.
  • The Order is narrowly focused similar to the existing federal contractor minimum wage and sick pay executive orders in that it only applies to a very limited set of federal government contractors (i.e., Davis Bacon Act, Service Contract Act, concessions contracts and contracts involving services provided to federal employees or the public on federal lands). Thus, it doesn’t apply to the majority of contracts to sell goods and services to federal agencies or the military.

Federal Government Employees

  • The administration issued an Executive Order requiring all federal workers to receive the COVID-19 vaccine. The administration had previously given federal workers the option to either receive the vaccine or undergo weekly testing for COVID-19.  This new order eliminates the option of testing.

Join Miller Johnson attorneys Sandy Andre, Gary Chamberlain, Tim Gutwald, and Hillary Scholten Monday morning, September 13, 2021 at 8:00 a.m. to discuss these new developments—what we know, as well as the questions we still have and are working hard to get answered for you.   For more into and to register: