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President Biden mandates federal workforce vaccination, announces new emergency rule for employers

By Pamela Wolf, J.D.

On September 9, President Joe Biden addressed the continuing spread of COVID-19—fueled by the Delta variant—and his plan to further protect Americans against infection and the economy from further damage resulting from the pandemic. That six-point plan includes a Department of Labor emergency rule for larger employers and executive orders requiring mandatory vaccination for federal employees and “adequate COVID-19 safeguards” for federal contract workers.

DOL emergency rule. The Department of Labor is developing an emergency rule that will require all employers with 100 or more employees to ensure their workforces are fully vaccinated, or show a negative test at least once a week, the President announced, noting that United Airlines, Disney, Tysons Food, and Fox News are already doing this.

The DOL will also require that employers with 100 or more workers provide paid time off to get vaccinated.

“The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers,” President Biden said. “We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”

Federal employees. The President also signed an Executive Order requiring that all executive branch federal employees be vaccinated. “I have determined that to promote the health and safety of the Federal workforce and the efficiency of the civil service, it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law,” the EO states.

Each federal agency must implement, consistent with applicable law, a program to require COVID-19 vaccination for all of its federal employees, with exceptions only as required by law. Within seven days, the Safer Federal Workforce Task Force is required to issue guidance on agency implementation of the new vaccination mandate for all agencies covered by the EO.

Federal contractors. A separate Executive Order imposes requirements on federal contractors. Said President Biden: “If you want to work with the federal government and do business with us, get vaccinated. If you want to do business with the federal government, vaccinate your workforce.” This EO will ensure that the parties contracting with the federal government “provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument.”

Under the EO, federal contracts must include a clause specifying that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force, provided that the Director of the Office of Management and Budget approves the Task Force Guidance and determines that the Guidance, if adhered to by contractors or subcontractors, will promote economy and efficiency in federal contracting.

By September 24, 2021, the Task Force is required, as part of its issuance of Task Force Guidance, to provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required to comply with workplace safety guidance, and any exceptions to Task Force Guidance that may apply.

Expanding protections. President Biden said that his plan will extend the vaccination requirements that he previously issued in the healthcare field. “Already, I’ve announced, we’ll be requiring vaccinations that all nursing home workers who treat patients on Medicare and Medicaid, because I have that federal authority,” he said. “Tonight, I’m using that same authority to expand that to cover those who work in hospitals, home healthcare facilities, or other medical facilities—a total of 17 million healthcare workers.”

The Biden Administration is also requiring nearly 300,000 educators in the Head Start program to be vaccinated.

President Biden also called on those who run large entertainment venues, from sports arenas to concert venues to movie theaters, to require people to get vaccinated or show a negative test as a condition of entry.

In addition, the President called on all governors to require vaccination for all teachers and staff, acknowledging that some have already done so. “[W]e need more to step up,” he said.

The vaccine requirements in President Biden’s plan are said to affect about 100 million Americans—two-thirds of all workers.