President Biden announced at a 5 p.m. press conference on September 9, 2021, a new six-pronged national strategy to fight COVID-19 while keeping businesses and schools open.
A link to the plan can be found here: https://www.whitehouse.gov/covidplan/
President Biden has asked the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to issue a Temporary Emergency Standard (“ETS”) requiring all employers with more than 100 ( 100+) employees either (1) ensure that their workers are vaccinated against COVID-19; or (2) test their unvaccinated employees at least once a week (this test producing a negative test result before the unvaccinated employee is allowed to come to work). For employers with multiple sites or related companies that individually employ less than 100 employees, but collectively employ more than 100 employees, no guidance has yet been issued as to whether these sites and / or related companies should be combined with end of the 100+ employee threshold. . It also remains to be seen whether employees who work exclusively from home will be subject to the requirements.
The president also signed an executive order requiring that all employees of the executive branch of the federal government and contractors who do business with the federal government now have a fully immunized workforce.
The Centers for Medicare & Medicaid Services (“CMS”) are taking action to require workers in most health care facilities (those receiving Medicare or Medicaid reimbursement) to be vaccinated (with no possibility of weekly testing). This requirement will apply to most employers in hospitals, dialysis centers, day surgery and home health agencies. The plan explains that this “action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as hospital and other staff. CMS-regulated facilities, including clinical staff, people providing services through arrangements, volunteers, and staff who are not involved in the direct care of patients, residents or clients. âIt remains to determine which employers in the health sector are not subject to this next mandate.
The plan directs the Department of Health and Human Services (âHHSâ) to initiate the development of rules requiring the vaccination of teachers and staff in the Head Start and Early Head Start programs.
The plan also describes several resource enhancements for business owners. Small Business Administration (“SBA”) Increases Maximum Amount A Small Business Can Borrow Under COVID Economic Disaster Loan Program (“EDIL”) from $ 500,000.00 to $ 2,000,000.00 $. These funds can be used to “hire and retain employees, purchase inventory and equipment, and pay off higher interest rate debt.” The SBA “will ensure that no small business has to start repaying these loans for two years after receiving the funding.” To ensure that “Main Street businesses” have more time to access these funds, the SBA is offering an exclusive 30-day window for those businesses wishing to borrow $ 500,000.00 or less. Finally, a community browser program is being launched to connect small businesses to the federal, state and local resources they need.
Lawsuits will most certainly be filed to challenge the rules provided. A federal judge could issue an injunction prohibiting the implementation of OSHA rules (coming soon). However, it is not known whether a decision in such a lawsuit will be rendered before the (upcoming) OSHA deadline comes into effect. In the meantime, large employers should prepare to comply with the vaccination mandate and check frequently if there is additional guidance on outstanding issues, for example whether the number of employees will include part-time workers, full-time and temporary, who will bear the financial costs for weekly testing, if the vaccine mandate covers remote workers and if the time spent getting tested and waiting for results is compensable time.
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