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Legal Alert: Implications of the Six-Pronged Plan on Employers

On September 9th, 2021, President Biden unveiled the White House’s “Path out of the Pandemic” which is also being referred to as the “six-pronged plan.” Certain prongs of the plan will impact employers in the United States. The COVID-19 pandemic began impacting the United States in March of 2020, and to date approximately 40 million Americans have been diagnosed with COVID-19, and approximately 656,000 Americans have died due to COVID-19.

While we do not have definitive rules around this guidance, we do know that President Biden’s plan consists of six general initiatives:

  1. Vaccinating the unvaccinated with mandates for workers (public and private)
  2. Protecting those who are currently vaccinated with booster shots
  3. Keeping schools open safely
  4. Increase testing for COVID-19
  5. Focus on economic recovery
  6. Improve care for those with COVID-19

Depending on how the rules are written, the first prong may have an impact on many employers in the United States.

The highlights of this White House initiative include:

  • Requiring Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly
  • Requiring Vaccinations for all Federal Workers and for Government Contractors (i.e., certain businesses that provide services or do business with the Federal Government)
    • See related Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors
    • See other related Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees
  • Requiring COVID-⁠19 Vaccinations for Over 17 Million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings
  • Requesting that large entertainment venues require Proof of Vaccination or Testing for Event Entry
  • Requiring Employers to Provide Paid Time Off to Get Vaccinated

As noted above, we do not have specific information on the rules related to the requirement that large employers require vaccinations or weekly testing. The President has directed that the Department of Labor’s Occupational Safety and Health Administration (OSHA) draft emergency rules regarding these requirements. 

The direction to OSHA is as follows: 

“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. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.”

Furthermore, as it relates to paid time off, the President has directed OSHA to establish rules for large employers to provide paid time off for employees to receive the vaccination:

“To continue efforts to ensure that no worker loses a dollar of pay because they get vaccinated, 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 under the weather post-vaccination. This requirement will be implemented through the ETS.”

Administration officials stated that failure to comply with these rules will carry a penalty of $14,000 per violation, although no details about this calculation or its enforcement have been released.

Alera Group will continue to monitor this plan, and when more is known about this implementation, will issue additional guidance for employers. To date there are no additional facts known about these requirements, including how the 100-employee headcount will be calculated, when this rule goes into effect, and best practices to implement it.

 

The information contained herein should be understood to be general insurance brokerage information only and does not constitute advice for any particular situation or fact pattern and cannot be relied upon as such. Statements concerning financial, regulatory or legal matters are based on general observations as an insurance broker and may not be relied upon as financial, regulatory or legal advice. This document is owned by Alera Group, Inc., and its contents may not be reproduced, in whole or in part, without the written permission of Alera Group, Inc.

Updated as of 9/10/2021. 

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