Getting straight to the point, the rule requiring large private employers to mandate that their employees be vaccinated or submit to weekly testing subject to a monetary fine per incident of non-compliance has not been written yet; so, there is nothing that Ohio companies are required to do just yet. After hearing President Biden’s speech and reading news article on the subject, employers are sure to have questions about who qualifies as an “employee,” who pays for the weekly testing, what qualifies as an “incident,” and how should such a broad program be implemented. As the rules President Biden laid out are promulgated, we will issue additional information and provide guidance addressing these types of questions.
But for now, here is what we know so far:
On September 9, 2021, President Biden gave a televised speech detailing the key points of his new COVID-19 Action Plan. As part of this plan, President Biden announced that he has directed the Department of Labor to develop a new Emergency Temporary Standard (ETS) through OSHA that will require all large companies with 100 or more employees to mandate that all employees be vaccinated against COVID-19 or produce a negative COVID-19 test once a week. Of course, any such mandate will still be subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act (“Title IV”) and the Americans with Disabilities Act (“ADA”). The ETS will also require these companies to give employees paid time off to get the vaccine themselves or take a family member to get vaccinated.
While there are reports that an administration official also stated that the new ETS will include fines up to $14,000.00 per incident for companies failing to comply with the ETS, President Biden made no mention of this in his speech on Thursday night. However, we do anticipate that some type of penalty will be set out in the ETS, which we expect OSHA to issue in the next few weeks.
Some of the other key points of President Biden’s new COVID-19 Action Plan that could affect Ohio employers are as follows:
- The vaccine mandate for all employees of nursing home facilities receiving Medicaid or Medicare will be expanded to include hospitals, dialysis facilities, ambulatory surgical setting, home healthcare facilities and other medical facilities that receive Medicaid and/or Medicare benefits.
- All educators in the federally-paid Head Start program must be vaccinated.
- Certain contractors doing business with the federal government will be required to mandate that their employees and their subcontractors’ employees be vaccinated. On September 9, 2021, President Biden signed the “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors” directing the Safer Federal Workforce Task Force to issue Task Force Guidance that will set out protocols required of contractors and subcontractors to provide “adequate COVID-19 safeguards” to their employees working on or in connection with a Federal Government contract or contract-like instrument. Contractors and subcontractors working on such federal contracts will then be required to adopt the Task Force Guidance and its protocols. The Executive Order did not specifically mention a vaccine requirement; however, the Guidance can be reasonably anticipated to include just such a mandate. Again, this Task Force Guidance must still be written and then approved by the Director of the Office of Management and Budget; however, as the Executive Order set out an October 8, 2021 deadline for agencies to start taking steps to ensure that these provisions are included in federal contracts, we anticipate that the Guidance will be issued shortly.
- President Biden will use the Defense Production Act to increase production of rapid tests and has already worked with retailers such as Walmart, Amazon and Kroger’s to sell at-home test kits at up to a 35% price reduction. He will also be expanding free testing at pharmacies and distributing rapid tests to health centers, food banks and schools.
- Finally, President Biden announced that he will be expanding the COVID-19 Economic Injury Disaster Loan program to allow small businesses to borrow up to $2 million in a low-interest, long-term loan with no payments for two years for businesses impacted by COVID-19.
As more information on these programs and policies becomes available, we will issue additional guidance. If you are an employer with questions about these policies or want to start putting a mandatory vaccination policy in place, please contact your Critchfield attorney.