On September 9, 2021, President Joe Biden announced a six-pronged COVID-19 Action Plan that includes:
- Vaccinating the Unvaccinated;
- Further Protecting the Unvaccinated;
- Keeping Schools Safely Open;
- Increasing Testing and Requiring Masking;
- Protecting Our Economic Recovery; and
- Improving Care for Those with COVID-19.
For private employers in particular, the Action Plan creates new testing and vaccination mandates and financial support and incentives aimed at combatting the recent resurgence in the COVID-19 pandemic.
Testing and Vaccination Mandates
The Occupational Safety and Health Administration (OSHA) is creating an Emergency Temporary Standard (ETS) that will require all employers with 100+ employees to ensure that their workers either are fully vaccinated against COVID-19 or can prove, on at least a weekly basis, that they have tested negative for COVID-19 before being allowed in the workplace. These employers will also be required to provide paid time off to employees for the time it takes to get vaccinated or to recover if they experience side effects after being vaccinated.
In addition to an executive order requiring that all federal employees be fully vaccinated against COVID-19, “subject to such exceptions as required by law, President Biden has signed an executive order requiring adequate COVID-19 safety protocols for federal contractors. Although not apparent from the plain text of either executive order, the White House’s COVID-19 Action Plan page asserts that the federal employee vaccination requirement extends to all employees of federal contractors.
Health Care Workers
The Center for Medicare & Medicaid Services (CMS) will require COVID-19 vaccinations for workers in health care settings that receive Medicare or Medicaid reimbursement, like hospitals, dialysis facilities, ambulatory surgical settings, home health agencies and nursing homes. The vaccination requirement will apply whether or not the workers are involved in direct patient, resident or client care.
Financial Support and Incentives
Increased Aid for Small Businesses
The Small Business Administration (SBA) is strengthening its COVID Economic Injury Disaster Loan (EIDL) initiative, which provides long-term, low-cost loans for qualifying businesses. Qualifying businesses can take advantage of the $150 billion in loanable funds still available by now borrowing a maximum of $2 million, up from the previous limit of $500,000, to hire and retain employees, purchase inventory and equipment and pay off higher-interest debt. These loans will also now be more easily obtained by small, multi-location businesses in industries especially affected by the COVID-19 pandemic, like restaurants, hotels and gyms.
Simplifying Paycheck Protection Program Loan Forgiveness
The SBA’s Paycheck Protection Program (PPP), which gave loans to qualifying businesses to keep employees on their payrolls, will streamline its loan forgiveness process for businesses with loans of $150,000 or less. The SBA will provide pre-completed application forms to these borrowers, which can then work with the SBA to complete the forgiveness process.
Conclusion and Implications
While COVID-19 action plans are nothing new, President Biden’s Action Plan covers unchartered territory and may be rife for legal challenge. The Biden Action Plain also raises numerous questions on the testing and vaccination mandates, including:
- Will seasonal, temporary and part-time workers count towards the 100-employee threshold for OSHA’s COVID-19 mandate?
- Does OSHA have the authority to set vaccination and testing standards in the context of an ETS, especially as they pertain to wage and hour and paid leave requirements?
- Will the mandates apply to employees that work fully remotely and may rarely, or never, enter their employers’ premises?
- How will the mandates impact employers that have no brick-and-mortar physical location but send employees into the community to interact with customers, clients, and other members of the public?
- Will the mandates apply to employees subject to collective bargaining agreements and be considered mandatory subjects of bargaining with unions?
Some of these (and many other) questions may be answered in forthcoming regulations, but gaps open to interpretation will likely remain. We will continue to monitor these developments for notable updates.
For more information, please contact Lisa M. Scidurlo at firstname.lastname@example.org, Daniel J. Sobol at email@example.com, Alexander V. Batoff at firstname.lastname@example.org or the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.