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President Biden Announces, “Path Out of the Pandemic” With New Employer Mandates

September 10, 2021

By: Abby (Busler) Tilkens

On September 9, 2021, President Biden directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any unvaccinated workers to produce a negative test on a minimally weekly basis prior to attending work.

The directive to OSHA was part of a plan to increase COVID-19 vaccination rates in the U.S. This six-prong plan targets employers throughout the country to pressure and in some cases, mandate vaccinations. In addition to the OSHA directive, President Biden issued an executive order mandating vaccination for federal workers, contractors working with the federal government, and employees of health-care facilities that receive Medicare or Medicaid funding.

OSHA is also drafting a rule requiring employers with more than 100 employees to provide paid time off for the time it takes to get vaccinated and time off to recover from any post-vaccination side effects. This rule is intended to safeguard employees obtaining a vaccine from losing out on any wages during that process.

Legal commentators are already questioning the legality of the proposed Emergency Temporary Standard (ETS). Unlike OSHA’s conventional standards, an ETS skips OSHA’s long rule-making process. Judicial challenges are likely.

President Biden is requiring educators in the federal Head Start program and any other federal programs to be vaccinated. President Biden also calls upon on all states to adopt vaccine requirements for all school employees, as they are not subject to the OSHA order. Currently, nine states, as well as the District of Columbia and Puerto Rico, have vaccination requirements for K-12 school staff. Supporters contend vaccinations for eligible students and all staff will reduce the need for quarantines and keep students in the school facility. Those states mandating vaccinations for public schools argue it helps accomplish the goal of uninterrupted in-person education.

Schools will also receive funding for screening testing for teachers, staff, and students in K-12 schools. The plan recommends that schools continue with screening testing for those who have not been fully vaccinated when community transmission is moderate or high.

In addition, the Department of Education is investigating statewide mask mandate prohibitions to determine whether they are discriminatory against students with disabilities who are at heightened risk for severe illness from COVID by preventing them from accessing in-person education.

President Biden’s Plan also stresses a need to increase testing and masking precautions. In January 2021, President Biden issued an Executive Order Promoting COVID-19 Safety in Domestic and International Travel. This Order has been extended through January 18, 2022 and individuals risk significant fines if they are not compliant. There is also a push for the increase in testing, and the ability to test for COVID in an individual’s home, pharmacies, and in a doctor’s office.

So, what’s next? As employers sort through the new federal plan, we are here to assist in this process by keeping you up to date on the latest developments. Once OSHA issues its rule for employer mandated vaccinations, then employers must begin implementing that rule, while also keeping in mind that employers must respect any potential ADA or Title VII exemptions to vaccinations.

If you have any questions regarding this information, please contact your Davis|Kuelthau, s.c. attorney, the author linked above, or the related practice group chair here.