Path Out of the Pandemic: Action Plan Proposals Impacting Employers

On Thursday, September 9, 2021, President Biden announced a series of proposals as a part of the administration’s strategy to continue to combat COVID-19. In addition to the existing vaccination requirements for federal government workers which were issued in July, President Biden has ordered the Department of Labor’s Occupational Safety and Health Administration (OHSA) to develop an emergency temporary standard to address vaccination requirements for private employers.

In the absence of any legal challenges, under the administration’s six-part “Path Out of the Pandemic” action plan, we have identified several proposals that are expected to impact private employers and health care workers. These proposals are briefly summarized below:

  • Requiring all Employers with 100+ Employees to Require Vaccinations or Test Weekly 

While the specifics have not yet been made clear, OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require workers who remain unvaccinated to produce a negative COVID-19 test result at least weekly prior to reporting to work. This mandate will come in the form of an emergency temporary standard (ETS) which is expected to be released in the next few weeks. OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard. OHSA will impose fines for failing to comply with the ETS. The specifics of such penalties remain to be seen.

At the state level, Indiana Occupational Safety and Health Administration (IOSHA) adopts all OSHA standards and regulations absent a few exceptions. IOSHA is tasked with conducting health and safety inspections in all places of employment within the state of Indiana with the exception of those places covered by the construction safety division. In this respect, IOSHA will enforce the ETS issued by federal OHSA. In recent months, IOSHA has had staffing challenges that may impact its ability to serve as a fully effective enforcement division, if so called upon by the federal government.

  • Requiring Employers to Provide Paid Time off to Get Vaccinated 

Once issued, OSHA’s ETS is expected to require employers with 100 or more employees to provide paid time off for the time their employees need to receive the vaccination or recover from the effects following the vaccination.

  • Requiring Vaccinations for Federal Workers and Contractors that Conduct Business with the Federal Government 

Building on the requirements for unvaccinated federal workers in July, President Biden signed an Executive Order to require all federal executive branch workers to be vaccinated. Unlike private sector employees, there is no option for federal workers to opt out of the vaccination requirement by testing regularly. A separate order signed by President Biden applies the same requirements for federal workers to employees of contractors who conduct business with the federal government.

  • Requiring COVID-19 Vaccinations for Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings

In August, the Centers for Medicare and Medicaid Services (CMS) developed an emergency regulation requiring vaccinations for Medicare and Medicaid participating nursing homes. CMS will take continued action to require vaccinations for workers in most health care settings that receive Medicare and Medicaid reimbursement, including nursing homes, hospitals, dialysis facilities, ambulatory surgical settings, and other CMS-regulated settings. The requirements will also apply to individuals and staff in these facilities and those providing services under other arrangements.

  • Increased Support for Small Businesses 

The revised action plan includes additional support for small businesses by strengthening the COVID Economic Injury Disaster Loan (EIDL) program, which provides loans for eligible small businesses. The administration has indicated that these improvements will allow more businesses to borrow funds from the $150 billion in loanable funds in the program. The Small Business Administration (SBA) will increase the maximum amount of funding a small business can borrow through this program from $500,000 to $2 million. Recipients will not be required to repay these loans until two years after they receive the funding. The plan includes greater access to these funds for highly impacted businesses such as restaurants, hotels, and gyms, and tighter controls from the SBA to monitor the program and recipients. The SBA will also offer a 30-day exclusive window of access where only small businesses seeking loans of $500,000 or less will receive awards after the improved loan product launches.

As more information becomes available and the impending OHSA ETS is issued, we will provide additional updates. Please contact a member of our Labor and Employment Section for answers to specific questions you may have. 

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