Biden Administration Looking to Require COVID-19 Vaccines for Private Sector

On September 9th, President Biden directed OSHA to issue a new Emergency Temporary Standard that would require many employers to provide paid time for employees to get and recover from getting vaccinated. The implementation of the “soft” vaccine mandates, i.e., requires their employees to either be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates. 

The push for a broader COVID-19 ETS applicable beyond just healthcare has seemed inevitable for a while now.  In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, most employers dodged the bullet. President Biden’s new “Path Out of the Pandemic: POTUS COVID-19 Action Plan,” however, sees the current administration returning its focus to broadened COVID-19 policy.  After describing how the Administration facilitated getting more than 175 million Americans fully vaccinated against COVID-19, the Action Plan addresses the new, more challenging enemy in the fight against the virus – the Delta variant.  The COVID-19 Action Plan then sets forth President Biden’s six-pronged plan to combat COVID-19 this Fall: 

1. Vaccinating the Unvaccinated 

2. Furthering Protection for the Vaccinated 

3. Keeping Schools Safely Open 

4. Increasing Testing and Requiring Masking 

5. Protecting Our Economic Recovery 

6. Improving Care for Those with COVID-19 

In tackling the first goal, the Biden administration has already moved on several fronts to encourage vaccine holdouts to receive one form of the vaccine. First, President Biden signed an Executive Order requiring all government employees to be vaccinated against COVID-19, with no option of opting out with regular testing, and issued an accompanying EO directing the same standard to employees of contractors who do business with the federal government. Second, President Biden announced that he will require the 17 million healthcare workers at facilities receiving funds from Medicare and Medicaid to be fully vaccinated, expanding an existing vaccinate mandate for nursing care facilities and hospitals, home care facilities and dialysis centers around the country. Third, President Biden announced that he is calling on entertainment venues like sports arenas, concert halls, and other venues where large groups of people gather to require patrons to be vaccinated or show a negative test for entry. 

Arguably the most significant development at the center of President Biden's new COVID-19 Action Plan, though, is directing federal OSHA to require all businesses with 100 or more employees to ensure their workers are either vaccinated or tested once a week and to provide paid time off to allow employees to get vaccinated and recover from any adverse reactions.  Per the President’s COVID-19 Action Plan, these requirements will be imposed through a new OSHA emergency temporary standard to be issued “in the coming weeks.”  These new requirements could apply to as many as 100 million Americans – close to two-thirds of the American workforce. 

Because this will be an emergency rulemaking, the proposed regulatory text will not be available to the public.  In the coming weeks, similar to the ETS for healthcare, the Office of Information and Regulatory Affairs (“OIRA”) within the Office of Management and Budget (“OMB”) will host a series of meetings to hear from stakeholders regarding the proposed rule.