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Employment Law Notebook

Large Employers, Many Healthcare Entities, Federal Contractors and Federal Workers Must Get Vaccinated or Undergo Weekly COVID Testing Under New Presidential Plan

On September 9, President Biden announced that the Occupational Safety and Health Administration ("OSHA") will be requiring employers with 100 or more employees to require their employees be fully vaccinated with a COVID-19 vaccine or show a negative weekly COVID-19 test.  The move is part of the President's multi-pronged COVID-19 Action plan  to get the 80 million unvaccinated Americans vaccinated, a plan that will also impose vaccine employment requirements on health care providers that receive Medicare and Medicaid reimbursement,  federal workers of Executive Branch agencies, and employees of federal contractors. President Biden said this plan will increase the number of people who are vaccinated, which will protect them and their vaccinated co-workers from getting COVID-19.

Large employers who have been hesitant to roll out a mandatory vaccination requirement for fear some employees may protest or jump ship will soon have the decision made for them. OSHA will issue an Emergency Temporary Standard to implement the vaccine requirement for large employers, which will also include requiring them to provide employees with paid time off to get vaccinated. It is not yet known how fast OSHA will act.

As to the other workers affected by the President's COVID-19 Action plan, the President signed executive orders requiring federal workers in Executive Branch agencies and employees of federal contractors to be vaccinated, and authorized The Centers for Medicare & Medicaid Services (CMS)  to require health care settings that receive Medicare or Medicaid reimbursement to require their workers to get a COVID-19 vaccine except as required by law. These employers include, but are not  limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. as a condition for participating in the Medicare and Medicaid programs. CMS will be  developing an Interim Final Rule with Comment Period that will be issued in October.  This follows an announcement from CMS in mid-August that it would be issuing a rule to require employees in nursing homes to get a COVID-19 vaccine.

The following health care entities in New Jersey are already required under New Jersey Law to mandate workers to get a COVID-19  vaccination or undergo weekly COVID-19 testing as of September 7: long-term care facilities; intermediate care facilities; licensed home health agencies and registered health care service firms operating in the state; acute, pediatric, inpatient rehabilitation, and psychiatric hospitals, including specialty hospitals, and ambulatory surgical centers; residential detox, short-term and long-term residential substance abuse disorder treatment facilities; clinic-based settings like ambulatory care, urgent care clinics, dialysis centers, federally qualified health care centers, family planning sites, and Opioid Treatment Programs; community-based  healthcare settings, including Program of All-Inclusive Care for the elderly, pediatric and adult medical day care programs, certified day programs for individuals with intellectual and developmental disabilities and traumatic brain injury, and licensed community resident for adults with mental illness.  Additionally, by October 18, New Jersey is requiring all state workers and all employees in public and private schools to be vaccinated with a COVID-19 vaccine or produce a negative COVID-19 test at least once a week.

The President’s plan also encourages more states to implement mandatory vaccination requirements for staff in schools (as New Jersey has already done) and entertainment venues, where large groups of people gather, to require that their patrons be vaccinated or show proof of a negative test.