On Thursday, September 9, 2021, President Biden gave a speech (transcript here) outlining the federal government’s six-point plan for forging a ‘path out of the pandemic.’ Some areas of focus will directly impact business compliance, while others have indirect private sector impact. There are still points of detail to be hammered out and undoubtedly legal challenges to the Executive Orders will follow. This article summarizes what we know today.
President Biden’s six-point COVID-19 plan
The President gave an overview of the six main points in his action plan during his speech. You can also review all six points explained in greater detail on the White House website. The six areas of action are:
Vaccinating the unvaccinated: The President directed some stern words toward the unvaccinated throughout the speech, warning he had been “patient thus far, but our patience is wearing thin.” Calling COVID-19 a “pandemic of the unvaccinated,” much of his new plan is designed to ensure 80 million thus-far vaccine-hesitant Americans to get vaccinated. He plans to use various forms of U.S. government leverage, from employment to federal funds and contracts–and even OSHA rules–in order to force change.
Further protecting the vaccinated: Pending FDA authorization and a recommendation from the Advisory Committee on Immunization Practices (ACIP) at the CDC, the Federal government stands ready to approve and distribute third-dose vaccination boosters to at-risk individuals beginning on September 20, 2021.
Keeping schools safely open: Funding for COVID-19 mitigation in schools was provided through the American Rescue Plan (ARP) Act earlier this year. This funding can help schools support masking and testing, and improve ventilation to protect the health of students in schools. Additionally, the President ordered all staff in Head Start, DOD, and Bureau of Indian Education schools to be vaccinated under the order for federal employees.
Increasing testing & requiring masking: Using the Defense Production Act, the government procured 280 million rapid and at-home COVID-19 tests to be distributed to community testing sites and food banks. The government expanded free pharmacy testing and reached an agreement with Walmart, Amazon and Kroger to sell at-home test kits at cost for the next three months. Masking rules remain the same for interstate travel (planes, buses, and trains) however noncompliance fines will double. Masks continue to be required on federal lands, in federal buildings, and on military bases.
Protecting our economic recovery: The SBA is in the process of making two programs easier for small businesses: the COVID Economic Injury Disaster Loans (EIDL) and Paycheck Protection Program (PPP) loan forgiveness.
Improving care for those with COVID-19: To help counter the rising surge of COVID-19 Delta variant cases across the nation, the DOD is doubling its commitment of clinicians to support local hospitals in surge states. FEMA will assign these professionals to areas of greatest need. President Biden also pledged to increase the weekly pace of shipments of free monoclonal antibody treatments by 50% in September, including deploying Surge Response Teams to help administer the treatments.
For the remainder of this article, let’s drill down further on areas that will impact employers the most: vaccination mandates and economic recovery programs.
Federal vaccine mandates have arrived
President Biden announced a mandate in July that required all Federal government employees to either be vaccinated or submit to weekly testing. Now, he has announced that 3.6+ million executive branch employees (civilian and military) must be vaccinated within 75 days of his new Executive Order or face termination. White House press secretary Jen Psaki told reports on September 9th that “there will be limited exceptions for legally recognized reasons such as disability or religious objections.” Additionally, nearly 600,000 U.S. Postal Workers, also executive branch employees but in a quasi-independent agency, will follow the vaccinate-or-test rules implemented by the Department of Labor for private businesses.
Mandate extended to employees of federal contractors
By Executive Order, any private contractor that does business with the federal government will be required to subject employees to the same vaccination standard now in place for federal employees. Previously, contractor employees who worked on-site at government facilities were subject to the vaccine-or-test policy announced in July 2021. The U.S. government awarded nearly $146 billion in government contracts just to small businesses last year. So, this mandate has the potential to impact a lot of businesses and their employees.
Businesses with more than 100 employees
President Biden reached beyond previous vaccine targets for federal employees, federal contractors, and education and healthcare workers to touch private businesses in his new plan. He directed the Department of Labor to develop a rule through OSHA that will require 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.” To implement the policy, OSHA will issue an Emergency Temporary Standard (ETS).
This private sector federal vaccine mandate will cover more than 80 million U.S. workers. This vaccine mandate drew an immediate response from governors and attorneys general in 21 states as of this writing; many already declared their intention to bring legal challenges.
According to HR Executive and the Wall Street Journal, noncompliance would be expensive. Businesses may be fined up to $14,000 per violation.
Some employers will welcome the federal government providing the impetus for private sector employee vaccine mandates. Others will have preferred the flexibility and autonomy to create policies and procedures tailored to their own unique business situations, taking into account details about their own industry, workforce, customers, and risk.
Paid time off required
According to the White House website, “OSHA is developing a rule that will require employers with more than 100 employees 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.” The requirement wil
l be implemented through OSHA’s COVID-19 Healthcare Emergency Temporary Standard.
If your business has fewer than 500 employees, you could voluntarily extend the FFCRA paid time off for COVID-19, including vaccinations, and still receive federal tax credits. However, the window for tax credits closes on September 30, 2021. Unless extended again, employers will bear the cost of providing vaccine-related time off starting in October.
EIDL loan program revamped
The EIDL loan program will be strengthened to continue providing help for small businesses attempting to recover economically from the pandemic. “The Small Business Administration (SBA) will increase the maximum amount of funding a small business can borrow through this program from $500,000 to $2 million, which can be used to hire and retain employees, purchase inventory and equipment, and pay off higher-interest debt.” To ensure good access for the smallest businesses, SBA will offer a 30-day exclusive window for applications for loans of $500,000 or less. Further, small businesses will not have to begin repaying new EIDL loans for two years.
Streamlined PPP forgiveness
On August 4th, the SBA launched a new streamlined approach to PPP loan forgiveness for small businesses that took loans of $150,000 or less. Now, the SBA sends a pre-completed application form to the borrower. The borrower then reviews, signs, and returns the form to SBA and the SBA works with the lender to complete forgiveness. On average, the new process only takes about 6 minutes for the borrower to complete.
Watch for DOL and OSHA announcements; legal challenges
Whenever sweeping new orders, mandates, or rules get announced, there is a flurry of activity. The DOL and OSHA will need to issue directives and clarifications so that business leaders know how to proceed and comply. Additionally, there will be a number of legal challenges launched by state governments, worker unions, and private companies. The outcome of these legal challenges could change the direction or scope of the related Executive Orders and agency rules. Stay tuned.