Path Out of the Pandemic Action Plan

Breaking Down the “Path Out of the Pandemic Action Plan” and Its Impact on Employers

Fulcrum Partners Fulcrum Partners News

Understanding more about the President’s Path Out of the Pandemic Action Plan, which employers are impacted, and what they may want to do now.

On September 9, 2021, President Joe Biden announced the Path Out of the Pandemic, a new six-pronged national action plan. By positioning much of the plan under the purview of the Occupational Safety and Health Administration (OSHA), the Administration is dropping a big chunk of the still controversial issue of mandated vaccinations squarely into the laps of American employers.

  • Under the new rule, the details of which are still being ironed out, private employers with 100 or more employees are required to ensure that their workforce is fully vaccinated. As an alternative, any unvaccinated worker must provide a negative COVID-19 test result on at least a weekly basis before going to work.
  • Employers with 100 or more employees must also provide workers with paid time off to get vaccinated against COVID-19 and time to recover from any vaccine-related side effects.
  • Expanding the vaccination requirement for federal workers and many federal contractors previously announced by President Biden, the President has signed an Executive Order extending the requirement to a.) employees of contractors that do business with the federal government; and b.) federal executive branch workers. (More information: www.saferfederalworkforce.gov/). Note: the order does not apply to nonexecutive branch employees, including members of Congress or judicial employees.
  • The Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health must complete implementation of previously announced vaccination requirements.
  • As part of the plan, the Centers for Medicare & Medicaid Services (CMS) are taking action to require COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement and for staffers of federal Head Start and Early Head Start programs. CMS, taking on a similar role as that of OSHA, is developing an Interim Final Rule with Comment Period that will be issued in October.
  • Additionally, the President’s plan calls on entertainment venues such as sports arenas, concert halls, and other sites where large groups of people gather, to require that those in attendance show proof of vaccination or a current negative test result.

The five additional points of the 6-prong plan include: further protecting the vaccinated, keeping schools safely open; increasing testing and requiring masking; protecting our economic recovery; and improving care for those with COVID-19. Whether relegated to OSHA, the CMS, or other agencies, many aspects of the Executive Order are still works in progress with details of implementation and enforcement yet to be finalized.

Smooth Sailing or Troubled Waters Ahead?

In a Reuters article authored by David Shepardson, (Biden vaccine mandate will test OSHA, U.S. workplace regulator) several specific issues were identified as potentially coming into play either before or after the new rules are finalized. While OSHA is in charge of both formulating and enforcing the new rule, the agency is, according to Shepardson’s research, “significantly understaffed, and its emergency rulemaking mechanism has a mixed track record.”

OSHA’s plan is to publish an Emergency Temporary Standard (ETS) to enact the new requirements. Historically, however, the ETS protocol has only been implemented ten times over the past 50 years, with the courts invalidating the resultant rule four of the ten times and partially blocking a fifth ruling.

Shepardson quoted labor attorney, A. Scott Hecker,  of the Washington D.C. offices of Seyfarth Shaw, who observed that with over 80 million workers covered by the new rules, policing the rule’s enforcement would be a challenge.

Lastly, of course, the posturing seemingly inherent in bipartisan politics discussion, will no doubt lead to contentious debates and court actions in the days and weeks ahead.

Navigating the Uncertainty

No doubt, organizations that are covered by the new guidelines should start preparing for implementation. This may include encouraging employees to get vaccinated now in efforts to make compliance easier once the rule goes into effect. Some employers may not have the capacity to effectively collect and track weekly test results and may, for this reason alone, choose to mandate vaccinations of all employees. Another issue to consider could be the Fair Labor Standards Act which requires employers pay nonexempt employees for the time spent undergoing testing, if the testing occurs during the workday.

Beyond cost, logistics, and politics, both privacy issues and religious objections will also come into question as employers attempt to navigate these uncharted waters.

This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, accounting, legal or tax advice. Any tax advice contained herein is of a general nature. You should seek specific advice from your tax professional before pursuing any idea contemplated herein.

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