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GrayRobinson Labor & Employment E-lert: Federal COVID-19 Action Plan Update

Submitted by Firm:
GrayRobinson, P.A.
Firm Contacts:
Nicolas J. Watkins, Susan T. Spradley
Article Type:
Legal Update

Greg HearingChris McCannellSarah ReinerSusan Spradley | September 13, 2021

On Thursday, September 9, the White House released stringent new vaccine rules for federal workers, large employers, and health care staff in a sweeping attempt to contain the latest surge of COVID-19.

The following includes facts released by the White House in the "Path Out of the Pandemic: President Biden's COVID-19 Action Plan."

The President’s plan to combat COVID-19 this fall has six main components:

  1. Vaccinating the Unvaccinated
  2. Furthering Protection for the Vaccinated
  3. Keeping Schools Safely Open
  4. Increasing Testing and Requiring Masking
  5. Protecting Our Economic Recovery
  6. Improving Care for Those with COVID-19

For purposes of this e-lert, we will be focusing on those provisions that most directly impact private employers, including (1) vaccinating the unvaccinated, (4) testing and masking, and (5) economic recovery considerations.

1. Vaccinating the Unvaccinated

Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly - 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. OSHA has the ability to implement a standard to take effect immediately if there is “grave danger” to workers’ safety. 

Requiring Vaccinations for all Federal Workers and 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. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government. 

Requiring COVID-19 Vaccinations for Over 17 Million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings - The Center 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 builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.

Calling on Large Entertainment Venues to Require Proof of Vaccination or Testing for Entry - The President’s plan calls on entertainment venues like sports arenas, large concert halls, and other venues where large groups of people gather to require that their patrons be vaccinated or show a negative test for entry.

Requiring Employers to Provide Paid Time Off to 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.

GrayRobinson Notes: Although we anticipate it will be several weeks before OSHA issues the anticipated ETS, we recommend that employers reach out to their employment counsel to discuss the potential impact of the Biden Administration’s COVID-19 Action Plan on their operations now. The Action Plan contains numerous moving parts, and employers must consider issues such as the aggregation of employees between different related entities, Florida’s “Vaccine Passport” law, other state-specific local laws, and various enforcement and documentation issues, just to name a few. Moreover, failure to comply with the vaccine mandate or paid-time-off requirements within the Action Plan could result in fines of up to $14,000 per violation.

4. Increasing Testing and Requiring Masking

Mobilizing Industry to Expand Easy-to-Use Testing Production - Using authorities of the Defense Production Act and through the procurement of nearly $2 billion in rapid point-of-care and over-the-counter at-home COVID tests from multiple COVID-19 test manufacturers, the Administration will ensure a broad, sustained industrial capacity for COVID-19 test manufacturing. 

Making At-Home Tests More Affordable - Top retailers that sell at-home, rapid COVID-19 tests—Walmart, Amazon, and Kroger—will offer to sell those tests at-cost for the next three months. This means that Americans will be able to buy these tests at their local retailers or online for up to 35 percent less starting by the end of this week. The Administration has also taken action so that Medicaid must cover at-home tests for free for beneficiaries, and that states should ensure that any tools they use to manage at-home testing do not establish arbitrary barriers for people seeking care.

Sending Free Rapid, At-Home Tests to Food Banks and Community Health Centers - 25 million free at-home rapid tests will be sent to 1,400 community health centers and hundreds of food banks.

Expanding Free, Pharmacy Testing - The number of retail pharmacy sites around the country where anyone can get tested for free through the HHS free testing program will be expanded.

Continuing to Require Masking for Interstate Travel and Double Fines - President Biden’s Executive Order, Promoting COVID-19 Safety in Domestic and International Travel, directed applicable agencies to take action to require mask-wearing in airports and on certain modes of public transportation. TSA has extended its implementing orders for air and ground travel through January 18th, 2022, and the plan will double fines for those who are not in compliance.

Continue to Require Masking on Federal Property - President Biden’s Executive Order, Protecting the Federal Workforce and Requiring Mask-Wearing, requires masks and specific physical distancing requirements in federal buildings, on federal lands, on military bases, and other overseas locations, consistent with CDC guidance. The plan will ensure that these requirements remain in place.

5. Protecting Our Economic Recovery

New Support for Small Businesses Impacted by COVID-19 - The plan will help small businesses by strengthening the COVID Economic Injury Disaster Loan (EIDL) program, which provides long-term, low-cost loans. The improvements will allow more business to get greater and more flexible support from the $150 billion in loanable funds still available in the program.

The Small Business Administration (SBA) will increase the maximum amount of funding a small business can borrow through this program from $500,000 to $2 million, which can be used to hire and retain employees, purchase inventory and equipment, and pay off higher-interest debt. SBA will ensure that no small business has to start repaying these loans until two years after they receive the funding.

SBA will make it easier for small businesses with multiple locations in hard-hit sectors like restaurants, hotels, and gyms to access these loans. To ensure that taxpayer dollars are used to support businesses that truly need help, SBA has implemented tightened controls and will collaborate closely with the SBA Inspector General to monitor the program.

To ensure that Main Street businesses have additional time to access remaining funds, SBA will offer a 30-day exclusive window of access where only small businesses seeking loans of $500,000 or less will receive awards after the new improved loan product launches.

Streamlining Paycheck Protection Program (PPP) loan forgiveness for small loans - The plan will make it easier for more than 3.5 million PPP borrowers with loans of $150,000 or less to get their loans wiped clean. Under the new streamlined approach, SBA sends a pre-completed application form to the borrower who can review, sign, and send back to SBA, which then works with the lender to complete the forgiveness process. 

Launching the Community Navigator Program to Connect Small Businesses to the Help They Need - The ARP invested $100 million to establish a new SBA Community Navigator program, which will deploy trusted community partners in underserved communities to better connect business owners to federal, state, and local resources. The SBA will complete the competitive review process to select Community Navigators and put them to work in underserved communities this fall.

Upon further guidance and details related to employer responsibility and action, GrayRobinson professionals will release updates as frequently as necessary to keep our clients informed and in compliance. If you have any questions, please contact your GrayRobinson attorney or consultant, and we will work to help you navigate this new direction.