On September 9, 2021, President Biden unveiled the “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan.”  The Plan consists of six main components aimed at stopping the spread of COVID-19 and its variants.  The Plan would impose new obligations on federal employees, healthcare facilities, school districts, and private employers with 100 or more employees.

It is important to note that none of the provisions applicable to private-sector employers have been implemented nor will they likely be implemented immediately.  The Plan directs the Occupational Health and Safety Administration (OSHA) to use its rulemaking authority to issue certain requirements for employers with 100 or more employees.  The rulemaking process is very slow and the Administration will undoubtedly face significant legal challenges to the propose rules.  As such, employers should stay tuned for updates regarding the President’s plan.

A summary of the six components of the Plan is as follows:

I. Vaccinating the Unvaccinated.

1. Requiring all Employers with 100+ Employees to ensure all workers are vaccinated or tested weekly.  OSHA is currently developing a rule that would require all employers with 100+ employees to require vaccination for all workers or produce a negative test result on at least a weekly basis before being able to come to work.  OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement.
2. Requiring vaccinations for all Federal Workers and for millions of contractors that do business with the Federal Government.  The President signed an EO, effective immediately, requiring all employees of the federal executive branch to be vaccinated.  In addition, the President signed an EO, effective immediately, requiring the same for all employees of contractors that do business with the Federal Government.
3. Requiring COVID-19 vaccinations for over 17 Million Health Care Workers at Medicare and Medicaid participating hospital and other health care settings.  The Centers for Medicare & Medicaid Services (CMS) is taking action to require vaccination for all workers in health care settings that receive Medicare or Medicaid reimbursement.  This includes hospitals, dialysis facilities, ambulatory surgical setting, home health agencies, and nursing homes.  The requirement will apply to all staff including volunteers.
4. Calling on large entertainment venues to require proof of vaccination or testing for entry.  The President will “call upon” sports arenas, concert halls, and other entertainment venues to require patrons be vaccinated or show negative test for entry.
5. 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 workers to get vaccinated or to recover if they are “under the weather post-vaccination.”

II. Furthering Protection for the Vaccinated.

1. Providing easy access to booster shots for all eligible Americans.  The FDA is being pushed to fully approve booster shots by September 20.  Booster shots will be encouraged, free, and available from pharmacies, doctors’ offices, and health centers.
2. Ensuring Americans know where to get a booster.  A toll free number will be established in over 150 languages explaining where to get a booster shot.

III. Keeping Schools Open Safely.

1. Requiring staff in Head Start Programs, Department of Defense Schools, and Bureau of Indian Education-Operated schools to be vaccinated.  The Department of Health and Human Services (HHS) will initiate rulemaking to implement this policy for Head Start and Early Head Start programs.  The Department of Defense and Bureau of Indian Education (BIE) will initiate the same type of rulemaking.
2. Calling on all States to adopt vaccine requirement for all school employees.  Currently, 9 states, as well as D.C. and Puerto Rico, have vaccination requirements for K-12 school staff:  California, Connecticut, Hawaii, Illinois, New Jersey, New Mexico, New York, Oregon, and Washington.  The President is asking other states to implement such mandates.
3. Providing additional funding to school districts for safe school reopening, including backfilling salaries and other funding withheld by states for implementing COVID safety measures.  The American Rescue Plan provides $130B to states to support safe school reopening.  If a state cuts funding to a local school district or to a school leader who is implementing CDC-recommended prevention strategies like masking, the school district may apply for and use ARP funds to fill those gaps.
4. Using the Department of Education’s full legal authority to protect students’ access to in-person instruction.  The Department of Education will investigate states that prohibit mask mandates at school and penalize those found to discriminate against students with disabilities who are at heightened risk for severe illness from COVID.
5. Getting Students and school staff tested regularly.  HHS has provided $10B for COVID screening in K-12 schools.  HHS and CDC will continue to support and fund this testing.
6. Providing every resource to the FDA to support timely review of vaccines for individuals under the age of 12.

IV. Increasing Testing and Requiring Masking.

1. Mobilizing industry to expand easy-to-use testing production.  Under the Defense Production Act, $2B was spent on 280 million rapid tests.  These will be distributed to long-term care facilities, community testing sites, critical infrastructure, shelters, and prisons.
2. Making at-home tests more affordable.  Over the next three months, Walmart, Amazon, and Kroger will offer at-home rapid tests “at-cost,” which equates to a 35% reduction in cost.
3. Send free rapid, at-home test to food banks and community health centers.  25 million free at-home rapid tests will be sent to 1,400 community health centers and food banks.
4. Expanding free, pharmacy testing.  Over 10,000 pharmacies will continue to offer free testing.
5. Continuing to require masking for interstate travel and double fines.  Federal masking requirement will remain in effect through January 18, 2022 and fines for non-compliance will be doubled.
6. Continue to require masking on federal property.

V. Protecting our Economic Recovery.

1. New support for small businesses impacted by COVID.  $150B in loanable funds available.
2. Streamlining Paycheck Protection Programs (PPP) loan forgiveness for small loans.  Nearly every entity with loans of $150,000 or less will be “automatically” wiped clean.
3. Launching the Community Navigator Program to connect small businesses to the help they need.  $100M in initiatives to help small business with loans.

VI. Improving Care for Those with COVID-19.

1. Increasing support for COVID-burdened hospitals.
2. Getting life-saving monoclonal antibody treatment to those who need it.
3. Expanding the pool of health care professionals providing treatment by developing Federal monoclonal antibody strike teams.

As noted above, the requirements that may apply to private-sector employers (as well as certain state employers) do not go into effect immediately.  They are “proposals” that, primarily, are before OSHA for the rulemaking process.  This is a lengthy process that will face significant legal challenges before going into effect.  Stay tuned for further developments.