On September 9, 2021, President Biden announced future vaccine mandates for large private employers, federal contractors and subcontractors, federal employees, and most health care providers. The vaccine mandates would cover approximately two-thirds of the U.S. workforce. Both OSHA and the Safer Federal Workforce Task Force (“Task Force”) have been instructed to issue standards and guidance to employers with the details. Employers should be prepared for a relatively short turnaround on these details and, once issued, develop or adjust internal policies to comply. A number of groups have pledged to file lawsuits objecting to the private employer vaccine mandate, which could delay implementation of the mandate as the issue is played out in court.

Large Private Employers

President Biden tasked OSHA with developing an Emergency Temporary Standard (“ETS”) “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.” See President Biden’s COVID-19 Action Plan. OSHA’s ETS will also require large employers “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.”

Neither the White House nor OSHA has announced additional details concerning the timing or content of the ETS. However, before the ETS can go into effect, it will need to be submitted to and approved by the White House Office of Management and Budget (“OMB”).This same approval process took several weeks when OSHA issued its COVID-19 Healthcare ETS.

Federal Contractors

President Biden issued an Executive Order requiring that all new “contracts and contract-like instruments” entered into with the federal government include a clause specifying “that the contractor or subcontractor shall . . . comply with all guidance for contractor or subcontractor workplace locations published by the [Task Force].” The Executive Order specifically exempts grants, low-value contracts, work performed outside the United States, and subcontracts solely for the provision of products from the requirement. The Task Force’s deadline for publishing contractor guidance is September 24, 2021. And although the White House did not mandate the contents of the guidance, President Biden’s COVID-19 Action Plan stipulates that the guidance will contain vaccine requirements for federal contractors, as well as other COVID-19 safety protocols.

Federal Employees

President Biden issued a second Executive Order requiring all federal agencies to implement “a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” The Task Force has until September 16, 2021, to issue guidance on the mandate. The White House has stated that the guidance will “provide a ramp-up period” with an expectation that “federal employees will have about 75 days to be fully vaccinated.” 

ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.