Labor and Employment Update: Path Out of the Pandemic

We know that the announcement of The White House: Path out of the Pandemic: President Biden’s COVID-19 Action Plan (the “Action Plan”) has left many of us with more questions than answers.  We are closely monitoring the situation and will provide a more detailed summary when the applicable Occupational Safety and Health Administration (“OSHA”) rule(s) and additional guidance are released.  We expect that these clarifying rules and guidance will be released sometime in October. 

As of right now, we know that the Action Plan is a six-pronged comprehensive action strategy to ensure that every available tool is used to combat COVID-19.  The Action Plan includes the following items impacting employers:

1. OSHA will issue a new rule impacting employers with 100+ employees.

• The new rule will require all employers with 100 or more employees to either ensure that their workforce is fully vaccinated for COVID-19 or require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
• The new rule will also require employers to provide paid time off for workers to receive the COVID-19 vaccine or to recover if they are under the weather post-vaccine.

2. Workers in most health care settings that receive Medicare or Medicaid reimbursement will be required to be vaccinated.

• The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, such as hospitals, dialysis facilities, ambulatory surgical settings and home health agencies.
• This action will apply to staff in hospitals and other CMS regulated settings, such as, clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.
• This action is intended to create a consistent standard across the country to give patients assurance of the vaccination status of those delivering care.

3. Head Start and Early Start programs will be affected by the Action Plan.

• • The Department of Health and Human Services (“HHS”) will initiate rulemaking to requiring COVID-19 vaccinations for teachers and staff at Head Start and Early Head Start programs.

4. Vaccinations are required for federal government contractors.

• Contractors that do business with the federal government are required to provide adequate COVID-19 safeguards to their workers, including requiring COVID-19 (see Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors).

There are still many outstanding issues.  For example, the new rules and guidance should address the applicability of vaccine exemptions for sincerely held religious beliefs and qualifying disabilities based on previous guidance from the Equal Employment Opportunity Commission.  The new guidance should also address how employees will be counted to reach the 100-employee threshold and who will bear the costs of weekly testing for unvaccinated employees.  The term “health care setting” will also need to be more specifically defined.  Finally, the new emergency standards will likely be subject to multiple legal challenges, including those based on constitutional grounds.  

For now, we strongly recommend that employers review the CDC and OSHA guidance applicable to their business, and then review their current policies and practices to ensure compliance with the current guidance.  The most recent CDC guidance can be found at the CDC’s Guidance for COVID-19.

Joan M. Vecchioli is a partner in the Clearwater office and is Board Certified in Labor and Employment Law by the Florida Bar.
Colleen M. Flynn is a partner in the Clearwater office whose practice focuses on Labor and Employment Law.
Rachael L. Wood is a senior associate in the Clearwater office whose practice focuses on Labor and Employment Law.

THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.  LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.