New Vaccine and Testing Mandates; Some Answers and More Questions

 Keenan Blog

New Vaccine and Testing Mandates; Some Answers and More Questions

September 13, 2021

On September 9, 2021, President Biden announced a multipronged plan to combat the resurgent COVID-19 pandemic. Many parts of this plan will require further action on the part of states or federal regulatory agencies, but if implemented, the plan will have significant impacts on employers.

Vaccine/Testing Mandates
The provision receiving the most media attention is the announcement that the Department of Labor's Occupational Safety and Health Administration (OSHA) is developing an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated. Any covered workers who remain unvaccinated would be required to produce a negative test result on at least a weekly basis before coming to work. The ETS will also require these same employers to provide paid time off for the time it takes to get vaccinated or to recover from any post-vaccination side effects. The ETS is expected to impact over 80 million workers in private sector businesses with more than 100 employees.

Once the ETS is released, we will see how this will be implemented. Currently, there are numerous unanswered questions.

  • What will the recordkeeping and reporting mechanisms be?
  • How will the rule address health insurance coverage for weekly testing for unvaccinated workers?
  • How will the ETS address exemptions for workers who have either religious or medical reasons to refuse vaccination?
  • How quickly will this be implemented?
  • Will the cost of vaccine administration be borne by employers, employees or health insurers?

In addition to this workplace requirement, the Biden Administration's plan includes provisions that all of the following workers get vaccinated.

  • Federal workers and federal contractors
  • Most health care workers at hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies that participate in the Medicare and Medicaid programs. Based on the Administration's outline, it appears this requirement will apply to all staff in the covered facilities, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. In states such as California, some of those workers are already subject to vaccine mandates.

Booster Shots
For those workers already fully vaccinated against COVID-19, the Administration also plans to start offering booster shots as soon as boosters are authorized by the Food and Drug Administration (FDA). Booster shots could be available as soon as the week of September 20, 2021.

  • The plan refers to the booster shots as "free," indicating that insurance coverage of booster shots will follow the same rules that have been followed for coverage of the initial doses of COVID-19 vaccines.


K-12 Schools
While the plan gives no timetable for FDA authorization of vaccines for children under the age of 12, it does set forth the following steps intended to keep children in school this year:

  • The Department of Health and Human Services (HHS) will initiate rulemaking to implement a policy of vaccination for Head Start and Early Head Start programs. The Department of Defense (DOD) and the Bureau of Indian Education will do the same for the education programs that they manage.
  • The Biden Administration plan asks that more states implement vaccine mandates for K-12 schools. The plan states that the Department of Education intends to make funding available—beyond ARPA dollars—to help local school districts fill gaps when their state has withheld funding for implementing COVID safety measures. California, Connecticut, Hawaii, Illinois, New Jersey, New Mexico, New York, Oregon, Washington, Puerto Rico, and the District of Columbia currently have vaccination requirements for K-12 school staff.
  • HHS and the Centers for Disease Control and Prevention (CDC) are instructed to continue to provide assistance to schools to accelerate the establishment of screening testing for unvaccinated students, teachers, and staff in all schools.

Increasing Testing and Requiring Masking
Regarding testing, the Biden Administration plan includes:

  • Using the Defense Production Act to ensure a broad, sustained industrial capacity for COVID-19 test manufacturing, including the manufacture of an at-home test.
  • Deploying rapid at-home tests to community health centers and food banks.
  • Expanding the number of retail pharmacy sites where people can be tested for free.

Additionally, the plan indicates that Walmart, Amazon, and Kroger will sell at-home tests at cost for the next three months—leading to a 35% drop in the price of at-home COVID-19 tests at those retailers.

As for masking, the TSA has extended its masking orders through January 18, 2022. Federal masking requirements will continue on federal property and transportation, but there is no widespread workplace masking requirement contemplated by this plan.

Treatment for COVID-19
The plan states that the federal government will continue to send Surge Response Teams of doctors, nurses, and EMTs as well as equipment and testing sites to states that request the help. Additionally:

  • The Department of Defense (DOD) will double the number of clinical teams deployed through FEMA to respond to the COVID-19 surge in states that need them.
  • They will increase the average weekly pace of monoclonal antibody treatment to states by 50% in September and provide clinical personnel support and assist with national capacity to administer the treatment.

Economic Support
Finally, the plan includes several economic measures aimed at assisting small businesses by:

  • Strengthening the COVID Economic Injury Disaster Loan (EIDL) program by increasing loan limits and extending the time before employers must repay them
  • Streamlining the Paycheck Protection Program (PPP) by making the loan forgiveness application simpler to complete
  • Deploying the SBA Community Navigators established under ARPA to assist business owners in underserved communities.

More Information
Many aspects of this plan depend on further action by states as well as federal agencies. Employers that are not already subject to a state-level vaccine mandate should begin the process of planning how to implement a federal vaccination mandate. We have already published several briefings detailing the issues that can arise around employer vaccination programs and vaccination mandates. Links to those Briefings are below.

Vaccine Mandates and the Workplace: Where We Stand Currently (keenan.com)

Updated Guidance on COVID-19 Vaccine Incentives

EEOC Issues Updated Technical Assistance Publication for Guidance on Vaccination Workplace Requirements (keenan.com)

Additionally, those interested can read the plan in full at President Biden's COVID-19 Plan | The White House.

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About Amy Donovan
Amy is AP Keenan's Vice President of Legislative and Regulatory Affairs, authoring the firm's Briefings and position papers on legislation, regulation, and litigation that impact the firm and its clients.