What Employers Need to Know About Biden’s COVID-19 Action Plan and Vaccine Mandate

By Katherine Brustowicz and Virginia Peabody

President Biden recently issued a six-pronged action plan that requires vaccines for employees of federal contractors and employers with 100 or more employees, and an executive order requiring all federal employees to be vaccinated for COVID-19. The action plan has spurred some confusion. This brief alert aims to clarify the substance of the plan, as well as employer obligations.

President Biden’s action plan directed the Department of Labor (DOL) to require all private employers with 100 or more employees to mandate vaccines or require that their workforce produce a negative test at least once a week before coming to work. The DOL’s Occupational Safety and Health Administration (OSHA) will issue an Emergency Temporary Standard (ETS) to implement this vaccine requirement.

In addition, President Biden issued an executive order mandating that employees of the federal government be fully vaccinated no later than November 22, 2021. In order to meet the deadline, federal employees must receive the last dose of their vaccine on or before November 8, 2021. They are considered fully vaccinated two weeks thereafter. An exception to the mandate applies if it is necessary to provide a reasonable accommodation to employees who cannot be vaccinated because of a disability or a sincerely held religious belief, practice, or observance. Postal workers are not covered by the federal employee vaccine mandate, but they will be subject to OSHA’s ETS once it is issued.

The executive order for federal contractors applies to contracts or solicitations issued on or after October 15, 2021, and any extensions or renewals of existing contracts, or exercises of options on existing contracts, that occur on or after October 15, 2021. Federal contractors must be fully vaccinated by December 8, 2021. In order to meet the deadline, federal contractors must receive the last dose of their vaccine on or before November 24, 2021. The Safer Federal Workforce Task Force has released guidance regarding legal accommodations for federal contract employees.

Should private employers be taking steps to implement mandatory vaccination programs? Not at this time. Details about the vaccine mandate program will not be known until OSHA releases the ETS (e.g., effective date, vaccinations, exceptions, application to employees who telework, alternatives for employees who cannot be vaccinated, requirements to provide leave for vaccinations or testing, etc.). Because it may take several weeks, or even months, for OSHA to issue an ETS, and the mandate is likely to be challenged in court, employers do not need to take immediate steps to comply with the vaccine mandate. 

A private employer who voluntarily implements (or has implemented) a mandatory vaccine program should keep in mind that the program may need to be modified after the ETS has been issued. In the meantime, vaccine programs should be reviewed by legal counsel, clearly communicated to employees, and carefully documented. In addition, employers should be tracking employee compliance while protecting PHI and remaining in compliance with HIPAA.

Please feel free to reach out to David Gabor, Katherine Brustowicz, or Virginia Peabody of the Wagner Law Group’s Employment Law practice to discuss how vaccine mandates and the COVID-19 action plan may affect your organization.