In response to one of the worst outbreaks in the COVID-19 pandemic, attributable largely to the highly contagious Delta variant, President Biden on September 9 announced his six-prong Path Out of the Pandemic plan. To effectuate the first prong of his COVID-19 plan, “Vaccinating the Unvaccinated,” President Biden issued several executive orders. The executive orders mandate that all federal employees be vaccinated and that the federal Occupational Safety and Health Administration (OSHA) adopt emergency standards requiring that all private employers with 100 or more employees ensure their employees are either “fully vaccinated” or test negative for COVID-19 at least once a week.¹

Under the executive orders:

• All federal executive branch workers and employees of government contractors, including private employers, must be vaccinated, subject to limited legal exemptions for individuals who cannot be vaccinated for medical or religious reasons.² The Safer Federal Workforce Task Force must issue guidance on implementation of this requirement within seven days. There is no option to test out of the vaccination requirement.
• Workers in healthcare settings that receive Medicare or Medicaid reimbursement must be vaccinated, with the same limited medical and religious exemptions mentioned above.³
• OSHA must issue an emergency regulation—an emergency temporary standard (ETS)—that requires all employers with 100 or more employees to mandate vaccination or require any workers who remain unvaccinated to produce a weekly negative test result. The ETS will also require that employers provide paid time off for vaccination. OSHA is expected to issue the ETS in the next few weeks. According to the White House, this ETS will impact over 80 million workers in private businesses.⁴

Vaccine Mandates

The US Equal Employment Opportunity Commission (EEOC) addressed mandatory employee vaccination several months ago, in response to a clamor by private employers. In May 2021, the EEOC issued guidance stating that an employer may lawfully require all employees physically entering the workplace to be vaccinated for COVID-19, as long as the employer considers reasonable accommodations as required under federal law, as summarized in a recent WilmerHale alert.⁵  Many companies have already instituted vaccine mandates. However, some have, until now, chosen to require that only limited categories of workers be vaccinated—such as corporate employees working at company headquarters as opposed to workers in retail stores. Employers’ reasons for the more limited mandates vary but include the concern that workers will quit if required to get a COVID-19 vaccine, resulting in staff shortages in a particularly tight labor market. By applying the mandate to all companies with 100 or more employees, the OSHA ETS, which will be subject to federal enforcement, will mitigate the risk of employees choosing alternative jobs without a vaccine mandate.

Amid the President’s announcement and sweeping plan, questions remain—including whether and how the new requirements will apply to workers who will never return to the office and instead continue to work remotely, and whether large private employers will need to pay for testing employees who remain unvaccinated. These questions could be answered by the forthcoming OSHA ETS.

In Thursday’s announcement, the Biden Administration did not address booster vaccination efforts and whether the definition of “fully vaccinated” will be updated to include booster shots.

We will provide an update when OSHA issues the ETS requiring vaccination mandates. In the meantime, please reach out to the WilmerHale team with questions about navigating the pandemic in your workplace.