Advocacy News – September 10, 2021
On Thursday, President Biden announced he is implementing a new national strategy to address COVID-19. Many of the components of the plan impact private sector employers and their workers.
In his announcement, the President called on businesses “to do more to encourage vaccinations.” The President said he is using his “regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements,” saying, “These requirements will become dominant in the workplace.”
Although the Michigan Chamber is still analyzing the plan and its impact on Michigan employers, key components impacting private businesses include:
- Requiring all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. The President said the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more 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. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. It is estimated this requirement will impact over 80 million workers in private sector businesses with 100 or more employees. NOTE: It is unclear how quickly the ETS can be issued and/or implemented and whether OSHA has authority under their regulating statute to pursue this type of sweeping change through ETS. It seems likely that this mandate will be litigated.
- Calling on Large Entertainment Venues to Require Proof of Vaccination or Testing for Entry. Although not a mandate, the President is calling on entertainment venues like sports arenas, large concert halls and other venues where large groups of people gather to require their patrons be vaccinated or show a negative test for entry.
- Requiring Employers to Provide Paid Time Off to Get Vaccinated. The President announced OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are ill post-vaccination. This requirement will be implemented through the ETS. NOTE: As with the vaccine and testing mandate, it remains unclear how quickly the ETS can be issued and implemented and whether OSHA has authority under their regulating statute to pursue this type of sweeping change through ETS.
- Requiring COVID-19 Vaccinations for Over 17 Million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings. The President announced 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, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. This action is in addition to the vaccination requirement for nursing facilities previously announced by CMS.
- Requiring Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government. The President has signed an Executive Order to require all federal executive branch workers to be vaccinated and to extend the standard to employees of contractors that do business with the federal government.
Other components of the President’s plan includes:
- Offering COVID-19 booster shots to the general population as early as the week of Sept. 20, subject to authorization or approval by the FDA.
- Mobilizing the private sector to expand easy-to-use and rapid COVID-19 tests, including at-home tests. This would include the procurement of nearly $2 billion in rapid point-of-care and over-the-counter at-home COVID tests—280 million tests in all—from multiple COVID-19 test manufacturers.
- Making at-home testing more affordable. The President’s plan hinges on an agreement with certain retailers, including Walmart, Kroger and Amazon, to sell at-home testing kits at cost beginning this week and for the next three months.
- Doubling down on efforts Biden’s previous Executive Order requiring mask-wearing in airports and on certain modes of public transportation, including airplanes, trains, maritime vessels and intercity bus services.
- Calling on states to adopt vaccine requirements for all school employees.
- Getting students and school staff tested regularly.
As for implementation, it is our understanding that OSHA is in the process of developing the ETS. The use of an ETS will negate the need for public comment and ultimately expedite the entire process. The White House said OSHA will have the ability to fine non-complying businesses up to $14,000 per violation once the rule is in effect but no other details are available at this time. The exact timeline is unknown, but the ETS is expected to be finalized in the coming weeks and expected to take effect shortly thereafter.
The full details of the Administration’s plan can be found HERE but many questions remain unanswered, including who must pay for testing, what types of tests will be acceptable, whether time will be compensable if the employee must visit an off-site testing location and more.
The full details of the Administration’s plan can be found HERE. The Michigan Chamber will continue to seek answers to these questions, monitor the details of the plan and its implementation and keep members informed of key details and developments. Generally speaking, however, the Chamber believes it is the right of job providers to run their businesses free from government overreach. We trust Michigan businesses to determine the best policies for running their business in a manner that is best for their employees and customers keeping in mind their duties under the OSHA statute to provide a safe and hazard-free workplace. (The Chamber’s full statement to the media can be found HERE.)
Please contact Wendy Block with any questions at wblock@michamber.com.