On Thursday, Sept. 9, 2021, President Biden announced a new COVID-19 Action Plan. As part of the plan, the President has directed OSHA to issue a new temporary emergency standard that will require companies with 100 or more employees to mandate COVID-19 vaccination or submit to weekly COVID-19 tests. The OSHA standard will also require paid time off for employees to get the vaccine. The plan will also require healthcare employers to mandate that employees be vaccinated for COVID-19. Finally, the President’s Action Plan requires federal employees and employees of federal contractors to be vaccinated for COVID-19.

Requiring employers with 100+ employees to mandate COVID-19 vaccination or weekly tests

vaccine syringe and vile

The President’s directive to OSHA leaves some important details as yet unanswered. Among those are, how will coverage be determined? Will the 100 employee trigger apply companywide or to individual facilities? Under what circumstances will corporate entities be aggregated for purposes of determining number of employees? Will separate entities that are arguably “joint employers” be aggregated? Can employers pass the cost of COVID-19 testing along to employees? We will be reporting as soon as clarification on these and other issues becomes available.

Requiring healthcare employers to mandate employee vaccinations

President Biden’s plan will also require healthcare employers, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, home health agencies and nursing homes, to mandate that employees be fully vaccinated for COVID-19 in order to receive Medicare or Medicaid reimbursement. This rule will be issued by the Centers for Medicare & Medicaid Services and will apply to all staff, including those who are not involved in direct patient care. The President anticipates that this requirement will apply to over 17 million healthcare workers.

Requiring federal employees and employees of federal contractors to be vaccinated

President Biden also announced that all federal executive branch employees will be required to be vaccinated against COVID-19 and signed an executive order extending this requirement to employees of contractors and subcontractors that do business with the federal government. To implement this requirement, the executive order establishes a Safer Federal Workforce Task Force (Task Force), which will issue safety guidance (including a vaccination requirement) for contractor and subcontractor workplace locations by Sept. 24, 2021. Beginning Oct. 15, 2021, federal agencies will be required to ensure that new contracts and contract-like instruments, solicitations for contracts or contract-like instruments, extensions or renewals of existing contracts or contract-like instruments, and the exercise of an option on existing contracts or contract-like instruments include a clause that the contractor or subcontractor shall comply with all safety guidance published by the Task Force. Agencies are also strongly encouraged to ensure that contractors and subcontractors on existing contracts and contract-like instruments follow the Task Force’s safety guidance.


Employers should look for OSHA to issue a new temporary emergency standard, and healthcare employers should watch for the Centers for Medicare & Medicaid Services to issue its rule. In the meantime, employers should begin planning to implement the new vaccination requirements, including determining how they will verify employees’ vaccination status and how they will handle religious or medical requests for accommodation.