President Biden announced an action plan to continue to tackle the ongoing COVID-19 pandemic. That proposed action plan contains new requirements with potentially big ramifications for employers.
EMPLOYERS WITH 100+ EMPLOYEES TO REQUIRE VACCINATION OR WEEKLY TESTING; PAID TIME OFF TO GET VACCINATED; FINES BETWEEN $70,000 and $700,000 ARE POSSIBLE.
The U.S. Occupational Safety and Health Administration (OSHA) will release an emergency temporary standard (ETS) requiring employers with 100 or more employees to have their employees be vaccinated against COVID-19 or alternatively undergo weekly testing. These employers will be required to provide paid time off to allow employees to get vaccinated and to recover from any side effects. We fully anticipate Nevada to release it’s own ETS mirroring the federal standard shortly after OSHA’s ETS is released.
What We Don’t Know Yet
When This Goes Into Effect. We expect OSHA to give employers time to implement this requirement once the ETS is in effect, but we don’t have a known schedule or timeline. We do know that when the COVID-19 ETS for healthcare was released, OSHA gave employers 14 days to implement the requirements and 30 days to be in compliance.
Who Pays for Testing. Who will cover the costs of the weekly testing — employers, employees or potentially insurance? That’s unknown and although historically OSHA has put the cost of health related initiatives on the employer, it’s entirely possible that given Biden’s push to incentivize vaccination that employees may have to cover their own costs.
What Testing Will Be Allowed. Given the shortage of testing capacity as a result of demand, this mandate could potentially allow for rapid at home tests to be allowed — although that is far from certain.
What The Penalties for Non Compliance Will Be. Congress recently tucked a massive enforcement clause into the large reconciliation bill. That section calls for fines on employers as high as $70,000 and up to $700,000 for willful or repeat violations.
FEDERAL CONTRACTORS & SUBCONTRACTORS TO REQUIRE COVID-19 VACCINATION
We also know that President Biden’s executive order in connection with the action will require certain federal contractors and subcontractors to mandate COVID-19 vaccination for their employees.
This requirement will apply to contracts or contract-like arrangements valued above the simplified acquisition threshold (currently $250,000) or more for the procurement of services, construction, or a leasehold interest in real property; services covered by the Service Contract Act; concessions; and services offered to federal employees, their dependents, and the general public in connection with federal property or lands. It also applies to subcontractors or executive-agency contracts for services, construction, or a leasehold interest in real property. However, subcontracts solely for the provision of “products” (interpreted to mean supplies or goods) are exempt, as are services subcontracts equal to or below $250,000.
VACCINATION REQUIRED FOR HEALTH CARE WORKERS AT MEDICARE AND MEDICAID PARTICIPATING PROVIDERS
The Centers for Medicare & Medicaid Services (CMS) will extend the emergency regulations mandating vaccination for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, to be able to continue participating in Medicare and Medicaid programs. We also know CMS is urging all health care workers not currently vaccinated to begin the process. It’s expected that CMS is developing an Interim Final Rule with Comment Period that will be finalized in October.
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