Q&A for Employers on President Biden’s COVID-19 Action Plan

The recent announcement from President Biden regarding his COVID-19 action plan for private employers to mandate vaccines or testing has led to many questions. Our payroll platform partner, isolved, has published answers to many questions businesses may have about the new regulations.

Last week President Biden made headlines with the announcement of an action plan for the COVID-19 pandemic. The action plan includes proposals for vaccine mandates and COVID-19 testing that directly impact employers and employees.

To provide some insight into the action plan, we reached out to the isolved People Services team for a special edition of our monthly Compliance Corner Q&A series. Read below as isolved’s HR Business Partner Joyce Heiss answers some common questions about President Biden’s Path Out of the Pandemic action plan.*

1. What are President Biden’s new COVID-19 vaccine and testing proposals for employers and when do they go into effect?

On September 9, 2021, President Biden rolled out a national strategy, “Path Out of the Pandemic” to include the following employer mandates for vaccines:

• Private employers with 100+ employees are required to mandate vaccines or weekly testing. Additionally, employers are to provide employees paid time off to get vaccinated and recover from any side effects. The Department of Labor (DOL) through the Occupational Health and Safety Administration will draft an Emergency Temporary Standard in the coming weeks. Indications are for an implementation timeline of about 90 days.
• Last month, nursing homes were required to mandate vaccines if they received Medicare or Medicaid funding. That mandate is now expanded to include workers in most other health care settings that receive Medicare or Medicaid funding, such as hospitals and medical clinics.
• All teachers and staff of Head Start and Early Head Start programs as well as school and youth programs operated by the Department of Defense and the Bureau of Indian Education are required to be vaccinated.
• Federal employees of the executive branch and some employees of some federal contractors are required to be vaccinated. Two Executive Orders were signed on September 9, 2021 supplementing the previous July 29, 2021 directive eliminating the testing option for those who are not vaccinated unless they receive an approved exemption. Requirements for federal contractors will be set by a Safer Federal Workforce Task Force by September 24, 2021.

2. Do the new proposals require employers to mandate vaccines for their workforce under federal law?

Yes, the mandates announced as part of Path Out of the Pandemic are now federal policy.

3. What penalties do employers face if they do not mandate vaccines or follow weekly testing protocols?

Employers who are required to implement a vaccine mandate and refuse will face steep fines resulting in $14,000 per violation.

4. Are employers required to pay for weekly COVID-19 testing for employees who are not vaccinated?

There is no guidance requiring employers to cover the costs of the weekly testing mandate at this time. In guidance predating the pandemic, the Equal Employment Opportunity Commission states, “If an employer requires an employee to go to a health care professional of the employer’s choice, the employer must pay all costs associated with the visit(s).”

Alternatively, the U.S. Department of Health and Human Services offers a list of free testing resources that can be found here.

5. What steps should employers take to set up testing processes?

In anticipation of the DOL releasing their Emergency Temporary Standard, employers should begin considering the following questions in determining testing processes:

1. What tests will be administered?
2. How will the testing process work?
   • How will the tests be carried out?
   • When will the tests be administered?
   • Where will the tests be carried out?
3. How will employees report test results?
4. What will happen if an employee tests positive?
5. What are the responsibilities of the employer?
   • How will the test results and other sensitive data be protected?
   • How will the employer ensure testing is accessible?

6. Are employers required to pay unemployment to employees who are terminated if they choose not to get vaccinated and don’t comply with testing processes?

Unemployment rules vary from state to state. Generally speaking, if an employee fails to follow a specific instruction or mandate issued by their employer it may be deemed insubordination or misconduct. Insubordination or misconduct may be disqualifiers for unemployment benefits.

7. How should employers collect and document proof of employee vaccination?

There is a lack of consistency across states and localities when it comes to the issuance of vaccination cards. Some individuals may not receive an “official” vaccination card. Additionally, collecting vaccination cards triggers retention of medical records requirements. The Equal Employment Opportunity Commission takes the position that any documents reflecting employee vaccination status are confidential medical records and should be maintained separately from other employment-related records.

As a workaround, employers may require employees to sign an attestation of their vaccine status eliminating the retention requirements for medical records. Also, employers can use attestations to remind employees that attesting to incorrect or knowingly false information will lead to corrective action.

* This blog is not legal advice. Please seek proper legal advice.

** It is important to note that several details on the forthcoming DOL’s Emergency Temporary Standard are still in flux as rules are currently being drafted.

GTM will continue to monitor and post updates as needed.