President Biden announces warrants for COVID-19 vaccines, with legal challenges likely to follow

September 10, 2021

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Yesterday, September 9, President Biden announced several initiatives regarding COVID-19 vaccine requirements for U.S. employers. This alert gives a brief overview of the content and timing of the main initiatives, and gives an overview of some objections that may be raised in the legal challenges that some governors and others have said they want to file.

1. OSHA rule requiring all employers with more than 100 employees to ensure their employees are vaccinated or tested weekly and that they pay for vaccination time.

The president announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a Temporary Emergency Standard (ETS) that will require all employers with 100 or more employees to ensure that their Workforce is fully vaccinated or to require all workers who remain unvaccinated to produce a negative test result at least once a week before coming to work. The rule, which is expected to be released in a few weeks, will require employers with more than 100 employees to give paid time off for the time it takes workers to get vaccinated and recover if they experience serious side effects from the vaccination.

OSHA ETSs are authorized by law, which allows the Minister of Labor to promulgate an ETS when determining (1) “that employees are exposed to serious danger from exposure to substances or agents. deemed toxic or physically harmful or new hazards ”and (2)“ that such an emergency standard is necessary to protect employees from such hazard.[1] An ETS can be in place for up to six months, after which time OSHA must issue a permanent standard that has been adopted through regular regulatory processes.[2] This would be OSHA’s second COVID ETS, following an ETS passed in June that was limited to the healthcare sector.[3]

OSHA likely does not have a notice and comment process for the upcoming rule, which is not required for an ETS. As a result, the specific requirements of the standard will likely be known on the day of publication, with an effective date shortly thereafter. Uncertainties the rule’s publication is expected to resolve include how it would apply to employees working from home or workers in remote locations without contact with other employees.

The decision to adopt the rule as an “emergency” and “temporary” standard, without notice or comment, could be subject to legal challenge. A challenge may also be against the requirement to pay the wages of the rule; wages are not a topic OSHA usually regulates, and the requirement arguably contrasts with Congress’ decision to let the COVID-related paid vacation programs established by the Families First Coronavirus Response Act expire after December 31, 2020 If the ETS requires vaccination of workers who have recently had and recovered from COVID-19, that could also be targeted.

2. Orders in Council requiring vaccinations for employees of federal contractors and for all federal workers.

In announcing the OSHA ETS, the president also issued separate executive orders regarding the vaccination of federal contract employees and the vaccination of federal workers.

The Federal Ordinance on Entrepreneurs does not impose any immediate workplace requirements. Rather, the requirements – which the White House says will include a vaccine mandate – are to be defined by September 24 by the “Federal Workforce Safer” (Task Force) of the White House, established by the president in January. Under the ordinance, by September 24, the task force must provide “definitions of terms relevant to contractors and sub-contractors, explanations of the protocols required from contractors and sub-contractors to comply. occupational safety guidelines, and all exceptions to the working group guidelines that apply to the contractor and subcontractor workplaces and individuals in such locations working on or in connection with a government contract federal.[4] The working group’s guidelines must be accompanied by a decision, issued by the Director of the Office of Management and Budget (OMB), that the guidelines “promote economy and efficiency in federal contracts, if they are respected by government contractors and subcontractors ”.[5] The decree cites the Federal Administrative Services and Goods Act (the Public Procurement Act) as the authority for the new mandate of the federal contractor.[6]

The ordinance is enforced by requiring federal agencies to include a clause in contracts requiring that “the contractor and all sub-contractors (at any level)” comply with all location guidelines. work of contractors or sub-contractors published by the Safer Federal Workforce Task Force. for the duration of the contract.[7] This clause is to be included in new contracts and extensions and renewals of existing contracts, and “will apply to all workplaces.” . . in which a person works on or in connection with a federal government contract.[8]

A legal challenge from the Order is likely to focus on the president’s authority under government procurement law to use a White House task force to develop workplace safety rules for federal contractors. As noted in a previous alert, presidents on both sides are increasingly using government procurement law to regulate terms and conditions of employment for federal contractors, including more recently a minimum wage requirement of $ 15.[9] A challenge to this COVID executive decree could produce an important legal precedent on presidential authority in this area.

Apart from the decree regarding contractors, President Biden also signed an executive decree requiring all federal executive workers to be vaccinated, with a few exceptions.[10] The ordinance requires federal agencies “to implement, to the extent consistent with applicable law, a program requiring vaccination against COVID-19 for all [their] Federal employees.[11] The College does not allow employees to avoid vaccination through frequent testing. Instead, “only” these “exceptions.” . . required by law ”will be allowed.[12] These exceptions are likely to relate to disabilities and religious objections.[13] The president ordered the task force to “issue guidelines within 7 days. . . on the agency’s implementation of College requirements for federal employees.[14]

3. COVID-19 vaccinations for healthcare workers at Medicare and Medicaid participating hospitals, and other healthcare settings.

The president announced that the Centers for Medicare & Medicaid Services (CMS) will require COVID-19 vaccinations for workers at most healthcare facilities that receive Medicare or Medicaid reimbursement, including, but not limited to, hospitals, dialysis centers, outpatient surgery facilities and home health agencies. This action is an extension of a nursing home vaccination requirement recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS regulated facilities. , including clinical staff, people providing services through arrangements, volunteers, and staff not involved in the direct care of patients, residents or clients.[15]

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We plan to provide further updates later this month as actions on the President’s directives progress.

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[1] 29 USC § 655 (c) (1).

[2] Identifier. § 655 (c) (3).

[3] See OSHA National Press Release, US Department of Labor OSHA issues temporary emergency standard

to protect healthcare workers from the coronavirus (June 10, 2021), https://www.osha.gov/news/newsreleases/national/06102021.

[4] Executive Order on Ensuring Adequate COVID Security Protocols for Federal Contractors (September 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on -ensuring-adequate-covid-security-protocols-for-federal-contractors /.

[5] Identifier. § 2.

[6] Identifier. (citing 40 USC 101 et seq.).

[7] Username.

[8] Identifier.

[9] Gibson Dunn, Department of Labor launches drafting of rules to raise minimum wage to $ 15 an hour for federal contractors (July 29, 2021), https://www.gibsondunn.com/wp-content/uploads/2021/07/department-of-labor-initiates-rulemaking-to-raise-the-minimum-wage-to-15 – dollars-per-hour-for-federal-contractors.pdf.

[10] Executive Order Requiring Coronavirus Disease Vaccination 2019 for Federal Employees (September 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on -requireing -coronavirus-disease-2019-vaccination-for-federal-employees /.

[11] Identifier. § 2.

[12] Identifier.

[13] Press briefing by press secretary Jen Psaki (September 9, 2021), https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/09/press-briefing-by-press-secretary-jen-psaki-september-9-2021 / (indicating that there would be exceptions for “legally recognized reasons, such as disability or religious objections”).

[14] Executive Decree requiring vaccination against coronavirus disease 2019 for federal employees (September 9, 2021) in § 2; see also Safer Federal Workforce, https://www.saferfederalworkforce.gov/.

[15] See also CMS, Press Release, Biden-Harris Administration Takes Further Steps To Protect Residents Of U.S. Nursing Homes From COVID-19 (August 18, 2021), https://www.cms.gov/newsroom/press-releases/biden-harris-administration-takes-additional-action-protect-americas-nursing-home-residents-covid-19.

The following Gibson Dunn attorneys helped prepare this Client Update: Eugene Scalia, Helgi C. Walker, Katherine VA Smith, Jason C. Schwartz, Jessica Brown, Karl G. Nelson, Amanda C. Machin, Lindsay M. Paulin , Zoë Klein, Chad C. Squitieri and Marie Zoglo.

Gibson Dunn attorneys are available to answer any questions you may have regarding these developments. For more information on these matters, please contact the attorney Gibson Dunn with whom you normally work, or one of the firm’s Administrative and Regulatory Law, Labor and Employment or Government Contracts practice groups.

Administrative and Regulatory Law Group:
Eugene Scalia – Washington, DC (+1 202-955-8543, escalia @ gibsondunn.com)
Helgi C. Walker – Washington, DC (+1 202-887-3599, [email protected])

Labor and Employment Group:
Jason C. Schwartz – Washington, DC (+1 202-955-8242, [email protected])
Katherine VA Smith – Los Angeles (+1 213-229-7107, [email protected])

Public procurement group:
Dhananjay S. Manthripragada – Los Angeles (+1 213-229-7366, [email protected])
Joseph D. West – Washington, DC (+1 202-955-8658, [email protected])

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