Biden Administration COVID-19 action plan

On September 9, 2021, Biden announced a six-point plan of new measures to help control the pandemic, which included new executive orders and regulatory actions to effectively mandate vaccination for COVID-19 among a large swath of the American workforce. Executive orders were announced directing all federal agencies to mandate the vaccination of their employees (with exceptions as required by law, and no option for regular testing in lieu of vaccination)[1] per guidance to be developed by the Safer Federal Workforce Task Force, and all future government contracts to include a clause requiring compliance with guidance to be developed by the Safer Federal Workforce Task Force (likely to include a similar mandate).[1] The administration later set a November 22, 2021 deadline for most federal employees to be fully vaccinated and a January 4, 2022 deadline for federal contractors to be vaccinated.[2]

The employees of all federally-funded Medicaid and Medicare-certified health care facilities, and Head Start program facilities, must be vaccinated.[3][4][1] Companies with more than 100 employees may choose to require vaccination and must give their workers four hours' paid time off for their vaccination appointments; their unvaccinated employees (if any) must wear masks and be tested weekly for COVID-19, according to an Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard.[5][6] These two policies together—federally-funded healthcare facilities and large companies—will apply to 100 million workers and are scheduled to take effect on January 4, 2022.[2] Biden explained that corporate vaccine mandates had already been implemented by "some of the biggest companies" in the country, including Disney, Fox News, Tyson Foods, and United Airlines, and that "We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us."[7]

Titled "Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors", this Executive Order also issued on September 9 instructed government agencies to require employees of federal contractors be vaccinated.

Pursuant to this executive order, the administration released a document titled COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.

This standard required that all federal contracts issued after November 15, 2021, or renewed or optioned after October 15, 2021, must contain a clause requiring that contracting parties have a vaccination mandate in place covering employees working on the contract, as well as employees who supervise the contract employees, and employees who work in close physical proximity to the contract employees.

On November 30, 2021, the United States District Court for the Eastern District of Kentucky enjoined enforcement of this requirement in the states of Kentucky, Ohio, and Tennessee, finding that it was beyond the power of federal procurement laws.

Titled "Requiring Coronavirus Disease 2019 Vaccination for Federal Employees", this order required that government agencies "shall implement, to the extent consistent with applicable law, a program to require COVID–19 vaccination for all of its Federal employees, with exceptions only as required by law".

Companies receiving Medicare and Medicaid payments must have employees fully vaccinated by January 4, 2022, with exceptions for employees with medical and religious exemptions. Unlike the simultaneously released OSHA standard, there is no option for employees without an exemption to be tested rather than being vaccinated.

This rule was stayed in ten states by a court order issued on November 29, 2021, and in the rest of the country by a separate court order issued the following day.

The OSHA standard requires covered companies to either institute a vaccination mandate, or to institute a policy requiring employees to choose between either vaccination or a combination of weekly testing and mask-wearking at the workplace.

The standard applies to all businesses with over 100 employees, including full-time and part-time employees, but excluding contractors. Employees who work entirely remotely or entirely outdoors, or otherwise do not come into contact with other people through the course of their employment, are exempt from the vaccination and/or testing requirement. However, a company with over 100 employees is still generally under the standard even if all or nearly all employees work remotely.

Employers are required to provide up to four hours of paid leave for each vaccination dose received, and sufficient sick leave to allow employees to recover from any effects of vaccination.

Although the ETS requires employees to be vaccinated by December 6, it does not implement any consequences for nonvaccination (these being testing and mask-wearing requirements) until January 4.

Non-vaccinating employees must take a COVID-19 test either monitored by company personnel or through a third-party service, to insure that employees do not misrepresent the results of COVID-19 tests. Employees who choose not to be vaccinated must pay the cost of their own testing.

Employers must maintain records of employee vaccination status. Furthermore, employees are required to report work-related COVID-19 fatalities within 8 hours of the employer learning of them, and work-related COVID-19 hospitalizations within 24 hours of the employer learning of them.

Penalties for noncompliance can be $13,653 per instance, and up to $136,532 per instance of willful noncompliance.

Individual states may be exempted from the OSHA ETS if they adopt their own health and safety regulations of equal or greater effect.

On November 5, 2021, the OSHA ETS was temporarily stayed by the United States Court of Appeals for the Fifth Circuit, pending arguments by parties opposing the ETS, and by the government in support of the ETS; this stay was then extended on November 12, 2021. OSHA thereafter announced its suspension of enforcement of the ETS during these legal proceedings.

Many Republicans asserted Biden's order was an unconstitutional overreach of federal authority, and some Republican governors said they would sue to block it.[8] Despite the network being specifically cited by Biden during his speech as a major employer with vaccine requirements, Fox News pundits criticized the move; Sean Hannity described Biden as having "cancelled all medical freedom".[9][10] The next day, Biden responded to the threats, stating "Have at it. Look, I am so disappointed that, particularly some of the Republican governors have been so cavalier with the health of these kids, so cavalier with the health of their communities. We're playing for real here, this isn't a game, and I don't know of any scientist out there in this field that doesn't think it makes considerable sense to do the six things I've suggested."[11]

On November 6, 2021, the United States Court of Appeals for the Fifth Circuit temporarily stayed the OSHA ETS in response to a complaint contending that it exceeded the power of OSHA, and was economically nonfeasible for staffing companies falling under the rule, which the ETS deems responsible for testing staffed-out employees.

• List of executive actions by Joe Biden

• Path out of the Pandemic: President Biden's COVID-19 Action Plan (September 9, 2021)
• Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (September 24, 2021)
• OSHA COVID-19 Vaccination and Testing; Emergency Temporary Standard (November 4, 2021)
• CMS Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination (November 4, 2021)