The Biden administration is instructing 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 workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA is intending to issue an Emergency Temporary Standard (ETS) to implement this requirement in the near future, though no deadline has been set. Part of this ETS also will be a rule requiring these same large employers to provide paid time off for the time it takes for workers to get vaccinated or to recover if they under the weather post-vaccination.
 
Pursuant to the Americans with Disabilities Act and Title VII, any vaccine mandate would still need to make accommodations for medical and religious issues, but the reasonable accommodation offered to those who qualify for an exemption would need to require weekly testing.
 
The Centers for Medicare & Medicaid Services (CMS) also will require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including home health agencies. The White House says this requirement is intended to build on the vaccination requirement already announced for nursing facilities and will apply to nursing home staff and staff in most CMS-regulated settings.
 
In addition, the Administration also will require contractors that do business with the federal government to implement a vaccine mandate. This is in addition to the mandate in place since last month for contractors who enter federal property. Various federal agencies (the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health) will be issuing regulations regarding this mandate. The federal government already has prepared the employee verification required for federal contractors, which can be found here. The President’s Executive Order requires more complete guidance to be issued within 7 days.
 
The labor and employment team at Spilman has been monitoring COVID-19 developments since the beginning of the pandemic and has been working with clients on vaccine mandates, and necessary accommodations, for months. We stand ready to assist anyone who needs guidance in responding to these mandates. Please feel free to reach out to us at anytime.