On Thursday, September 9, 2021, President Biden announced sweeping mitigation measures aimed at addressing the Novel Coronavirus disease (“COVID-19”). Among other things, President Biden’s plan includes imposing requirements on certain employers vis-à-vis their employees. Specifically, the Department of Labor (“DOL”) has been tasked with promulgating an Emergency Rule that will require employers of a particular size to either mandate employee vaccination or impose regular testing requirements.  

Although neither the proposed Emergency Rule nor regulatory guidance has been issued yet, the following details about employer obligations have been disclosed:

• Federal employees are required to be vaccinated, with exceptions only as required by law (i.e., reasonable accommodations for employees with disabilities and sincerely held religious beliefs).

• Federal contractors and any subcontractors (at any tier) will be required to comply with all COVID-19 federal guidance and protocols at any workplace location in which they are working in or in connection with a Federal Government contract. This will likely include mask mandates and vaccination requirements, but the details of such guidance will be issued on or before September 24, 2021. However, any State law or municipal ordinances with more stringent protocols must continue to be observed. 

• Workers in most health care facilities that receive federal funds (e.g., Medicare and Medicaid reimbursement) must be vaccinated.

• Private sector businesses that employ 100 or more workers must mandate as a condition of employment either vaccination or weekly testing. Failure to implement such work requirements will result in federal fines.  

Though the Biden administration has issued Executive Orders and orally presented a summary of the aforementioned mitigation measures, there are several unanswered questions, such as:

• Do these changes require collective bargaining (for those employers in a unionized workplace)? Federal unions have already indicated that they expect the impending changes to be subject to bargaining.  

• Will State and local public employers be subject to any requirements, either because of their receipt of federal funds (if applicable) or for other reasons? The fact that the DOL’s Occupational Safety and Health Administration (“OSHA”) is developing the Emergency Rule portends the inapplicability to non-federal public employers (OSHA generally does not regulate State and local employers), but that remains to be seen. Even if the requirements are not applicable to non-federal public employers, the forthcoming Rule will nevertheless provide critical guidance for voluntary implementation on the State and local level.

• Are any of the costs associated with these requirements (i.e., vaccination, testing, and paid leave for testing and side effects) going to be subsidized by the federal government?    

We are continuing to monitor the situation closely and will provide updated information upon the issuance of federal guidance. We would be happy to help you navigate preparing a policy that addresses each of these issues, as they may be applicable to your operations. Please do not hesitate to reach out to the Weiss Serota Labor & Employment Division with any questions or concerns.

The information contained in this document does not constitute legal advice.4