Overwhelmed and Confused: Employers React to President Biden’s COVID-19 Action Plan

On September 9, 2021, President Biden released a general description of the COVID-19 action plan he wants to implement in this country’s battle against COVID-19 and its variants.  Probably the most highlighted and controversial provision in the plan is the requirement placed upon private employers to make sure their employees are either vaccinated or provide proof of a negative test result in order to remain employed.

This requirement will apply only to companies with more than 100 employees.  It is unknown what requirements will then filter down to those with fewer than 100 employees.  Further explanation would be required to explain which employees fall under the new vaccine requirement.  Does, 100 employees mean 100 full and part-time employees, or 100 full-time equivalents, and does it encompass companies that have multiple locations with fewer than 100 employees?

We will now have to wait and see what the OSHA regulations look like and what guidelines they provide.  Speed is of the essence with regards to these regulations and OSHA will be under tremendous pressure to release the guidelines as soon as possible. Time will also have to be provided for employers to be trained on the regulations and for employers to explain the rules to their employees.  If the rules cannot be issued, explained, and fully implemented in the next 90 days, they may not have much impact on the current levels of infection.

What we do know from the President’s speech and the briefings from his staff is that employees will have the right to declare an exemption or exception to the rule for medical or religious reasons.  What is missing, however, is a description of how an employee is supposed to prove that they have a medical or religious objection to the vaccine or testing that will be recognized under the law.  Must the employee provide a specific written excuse from their doctor that identifies a medical condition, and does the employee have to provide proof of their religious beliefs that prevents them from obtaining the vaccine, or being tested for the disease?

Also, even if an employee is exempt from the vaccine that would not mean that the employee would be exempt from weekly testing. Therefore, if they object to the vaccine for medical reasons or just refuse to take the vaccine, they may suffer the same consequence.  Namely, they will have to provide proof of a negative test on a weekly basis to keep their job.

As for the issue of testing, there is absolutely no indication of what types of tests are accepted, the timing of the tests, and what type of documentation an employee will have to provide about the test in order to support a negative result and to avoid vaccination or termination. And, we have no idea who has to pay for and provide the test.

One very interesting, but extremely important aspect of the President’s plan that has not received attention, is the section about “treatment” for COVID-19.  It is now clear that monoclonal antibody treatment is very effective at significantly lowering the risk of serious illness from COVID-19 and lowering the number of hospitalizations.  The President’s plan provides additional funding for expanding the use of this treatment and making it more readily available throughout the country. The President’s plan emphasizes that monoclonal antibody treatment is effective and should be considered with any individual who suffers severe symptoms from COVID-19 before hospitalization.  Keep in mind, this is the treatment that former President Trump received when he contracted COVID-19.  It is generally referred to as Regeneron, named after the manufacturer of the treatment.

At this point, we can only wait until we receive further notice from OSHA on the issuance of the new regulations and the training, education, and final implementation of those rules.  Employers will need to have time to study and then implement the regulations before they can be enforced.