Biden’s Fall 2021 COVID Plan Affects Private Employers

On Thursday, September 9, 2021, President Biden issued a plan with a series of steps aimed at getting more Americans vaccinated.  These steps include:

• Large Employer Mandate for Vaccination or Weekly Testing, and Mandatory Paid Time Off for Vaccinations and Recovery
  • Biden is ordering the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) that will “require all employers with 100+ employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work”
  • The ETS will also require these large employers “to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination”
  • If there are employees for whom weekly testing will become mandatory (either because the employer is not mandating vaccines, or due to reasonable accommodation provided to those with medical or sincerely held religious reasons for not getting vaccinated), then the employer will have to arrange and pay for such testing and might have to treat testing time as regular compensable time
  • We would presume weekly testing would not be necessary for employees not “coming to work” (i.e., working remotely and not meeting in-person with employees, customers, suppliers, etc.
  • An ETS is allowed to undergo an expedited review process without soliciting public comments, so we envision this new rule to be released very quickly
  • Once the ETS is effective, OSHA can fine employers up to $14,000 per violation
• Vaccine Mandate for All Federal Executive Branch Workers and All Federal Contractors
  • Biden has an issued an executive order requiring all employees of the executive branch of the federal government be vaccinated, as well as all federal contractors
    • In July, they had offered weekly testing as an alternative to being vaccinated, but that is now being removed as a broad-based alternative for the executive branch and federal contractors
  • The Department of Defense (DOD), the Department of Veterans Affairs (VA), the Indian Health Service (IHS), and the National Institute of Health (NIH) will continue with their previously announced vaccine mandates for their employees
• Vaccine Mandate for All Health Care Providers and Facilities Receiving Medicare or Medicaid Reimbursements
  • “Most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies,” must mandate vaccinations for all individuals providing services
  • This includes “clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care”
  • There have been some states and municipalities which have imposed vaccine mandates in health care, but this “will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care”
• Federal Recommendation for Large Venue Restrictions
  • The Biden administration will urge all large venue operators (theaters, arenas, etc.) to “require that their patrons be vaccinated or show a negative test for entry”
  • While this will not be a mandate, per se, most businesses follow federally published guidelines in order to best position themselves for legal protections
• Vaccine Mandate in Education Centers for Head Start, Department of Defense, and Bureau of Indian Education
  • Biden is ordering federal regulations to be written to require “teachers and staff at Head Start and Early Head Start programs, teachers and child and youth program personnel at the [DOD], and teachers and staff at Bureau of Indian Education-operated schools get vaccinated”
  • The administration is not yet mandating the same for K-12 but urges states to do so, noting DC, Puerto Rico, and nine states (CA, CT, HI, IL, NJ, NM, NY, OR, and WA) currently mandate vaccines for all teachers and staff in K-12 education
  • The Department of Education notes they have launched investigations in five states which prohibit mask mandates (IA, OK, SC, TN, and UT) to determine whether they “discriminate against students with disabilities who are at heightened risk for severe illness from COVID-19 by preventing them from safely accessing in-person education”
  • The administration also reminds schools that substantial funding has been provided to implement routine testing.  “CDC currently recommends that screening testing should be offered to students who have not been fully vaccinated when community transmission is at moderate, substantial, or high levels; and screening testing should be offered to all teachers and staff who have not been fully vaccinated at any level of community transmission.”
• Federal Mask Mandates for Mass Transportation and Federal Buildings/Lands
  • The Transportation Security Administration (TSA) has extended its mask mandates for airline travel through at least January 18, 2022
  • Mask mandates for other public transit and for those on federal lands, on military bases, and in federal buildings will also continue
  • Biden is doubling the fines for non-compliance
• Small Business Assistance
  • The Small Business Administration (SBA) will increase the maximum amount of funding a small business can borrow through the COVID Economic Injury Disaster Loan (EIDL) program from $500,000 to $2 million, which can be used to hire and retain employees, purchase inventory and equipment, and pay off higher-interest debt
  • Streamlined Paycheck Protection Program (PPP) loan forgiveness process for loans under $150,000 whereby the loan forgiveness application is pre-populated and sent proactively, and the employer can sign and submit it in just a few minutes, even from their mobile phone
• Health Care Assistance
  • Doubling “the number of DOD teams of clinicians deployed to support hospitals battling a surge in COVID-19 cases”
  • During July and August, the federal government has purchased and shipped over 100,000 monoclonal antibody treatments to states each week, and in September they will increase that by 50% in an effort to help “reduce the risk of hospitalization by up to 70% for unvaccinated people at risk of developing severe disease”
  • They will also enhance educational outreach about monoclonal antibody treatments and empower pharmacists to also be able to administer these “lifesaving treatments if they are infected or exposed to COVID-19”
  • Note that your health plan cannot be billed for monoclonal antibody medication the federal government has already purchased, but your plan may be billed for the administration

Biden also clarified that his push to prepare for booster shot administrations starting the week of September 20th was not intended to force the US Food & Drug Administration (FDA) to approve booster shots by that deadline.  His administration is just working proactively at this time to prepare for mass booster shot vaccinations by that deadline so they are ready to roll without delay once approval is in fact granted by the FDA and the CDC’s independent Advisory Committee on Immunization Practices (ACIP).  It appears the FDA may be leaning toward only authorizing boosters for certain individuals, such as those over 65 or at high risk and received their final dose over six months ago, but nothing is official yet.

They also clarified they are providing everything in their power to ensure the process to evaluate and hopefully approve vaccines for children under 12 does not have any hindrances.

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.