Find NACo's Latest COVID-19 Vaccine Resources
On September 9, the Biden administration announced a new COVID-19 Action Plan, titled “The Path Out of the Pandemic.” The plan takes a six-pronged approach to combat COVID-19, which includes advancing COVID-19 mitigation and response efforts through vaccination and masking, keeping schools safely open and bolstering our economic recovery.
The first portion of this six-part plan outlines efforts to reduce the number of unvaccinated Americans through regulatory powers and authorities. Below is a brief FAQ that provides an overview of common questions and answers regarding the new regulations and their potential impact on counties. NACo will continue to monitor and report on administrative and regulatory action being taken as they occur.
1. What are the details of the announcement made by President Biden regarding employer vaccine mandates?
To enact this goal the President took the following actions:
- Signed two new Executive Orders that would require vaccinations for all federal workers and contractors. The Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees requires all Federal executive branch workers to be vaccinated in accordance with guidance to be issued by the Safer Federal Workforce Task Force (the “Task Force”), established by Executive Order No. 13991. This Executive Order builds upon previous vaccination requirements made in July for federal employees, by taking away the option for routine testing with limited exceptions. The Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors requires vaccinations for all employees working on or in connection with covered federal government contracts and subcontracts, with limited exceptions.
- Instructed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule requiring 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. The White House announced that OSHA will issue an emergency temporary standard (ETS) to implement this requirement.
- Instructed the Centers for Medicare and Medicaid Services (CMS) to develop a rule requiring workers in health care settings that receive Medicare and Medicaid reimbursements to implement vaccination and testing protocols. This regulation would be released as an Interim Final Rule, and would be an extension of CMS’s impending rule that would require vaccination for nursing home employees announced last month.
2. What type of employers would be required to implement vaccine and testing mandates under these new regulations?
- Federal agencies: All employees of executive agencies as defined in 5 U.S.C. 2105 with the exception of the Government Accountability Office.
- Federal contractors: Applies to new contracts or solicitations issued on or after October 15, 2021, as well as extensions or renewals of existing contracts, or modifications on existing contracts, that occur on or after October 15, 2021. For existing contracts the order states that “agencies are strongly encouraged to the extent permitted by law, to ensure that the safety protocols required under those contracts and contract-like instruments are consistent with the requirements” that are being put forth within the Safer Federal Workforce Task Force that will be released.
- Healthcare settings that accept Medicaid/Medicare: This includes nursing homes, hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies among others.
- Employers with 100+ employees: Private employers with more than 100 employees that are subject to the Occupational Safety and Health (OSH) Act of 1970, which according to OSHA “covers most private sector employers and workers in all 50 states, the District of Columbia and other U.S. jurisdictions either directly through Federal OSHA or through an OSHA-approved state plan.” State Plans are OSHA-approved workplace safety and health programs operated by individual states or U.S. territories. State Plans are monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses and deaths. The White House estimates that the impending rule will impact 80 million workers, or two-thirds of the country’s workforce.
3. Are counties that have received federal funding from the CARES Act and the American Rescue Plan considered government contractors, and thus subject to the Executive Order signed by the President on September 9?
No. Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, applies to federal contractors and subcontractors who enter into “any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument.”
The Executive Order specifically states that it shall not apply to:
- Contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act;
- Contracts or subcontracts whose value is equal or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation;
- Employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or
- Subcontracts solely for the provision of products
4. What is considered a covered contract or contract-like instrument?
For the purposes of determining which employers are covered under Executive Order 14042, the term “contract or contract-like instrument” shall have the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors, ” 86 Fed. Reg. 38816, 38887 (July 22, 2021).
5. Which County employees would be covered by this mandate?
According to the Safer Federal Workforce Task Force’s guidance that was released on September 24, a “covered contractor employee” is any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.
6. Would counties, as employers, be subject to the impending rule from OSHA for employers with 100+ employees?
The Department of Labor and OSHA generally do not have regulatory authority over local governments and municipalities, however, the impending vaccination and testing regulation for employers with 100 or more employees may impact county employees who are in one of the 26 states that participate in OSHA-approved workplace safety and health programs and submit “state plans” to the agency.
There are currently 21 State Plans covering both private sector and state and local government workers, and there are five State Plans covering only state and local government workers…so therefore when Federal OSHA promulgates an ETS, these states must either amend their standards to be identical or “at least as effective as” the new standard, or show that an existing State standard covering this area is “at least as effective” as the new Federal standard.
7. Where can I determine if my county will be subject to the OSHA rule?
The below map outlines the 26 states with OSHA-approved State Plans covering local government workplaces that may be impacted by the OSHA vaccine mandate. For more details on these states, please visit https://www.osha.gov/stateplans.
8. When can we anticipate these requirements to be implemented and enforced?
The Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees requires the Safer Federal Workforce Task Force to issue guidance on how agencies should implement the vaccination requirement within 7 days of the issuance of the executive order (September 9), which means that guidance will be issued no later than September 17.
On September 24, the Safer Federal Workforce Task Force published guidance on COVID-19 workplace safety for federal contractors and subcontractors. The guidance was published under the direction of President Biden’s Executive Order 14042 “Ensuring Adequate COVID Safety Protocols for Federal Contractors” signed on September 9, which instructs federal agencies to require contractors and subcontractors to comply with specific COVID-19 workplace safety protocols. The order also directs the Federal Acquisition Regulatory (“FAR”) Council to oversee the implementation starting October 8, 2021.
CMS has indicated that it is developing an Interim Final rule with Comment Period that will be issued in October.
The timeline for the release of OSHA’s ETS is not yet known. The ETS can remain in place for up to six months, after which it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process subject to a notice and comment period.
Adoption of the ETS by State Plans must be completed within 30 days of the promulgation date of the final Federal rule, and State Plans must notify Federal OSHA of the action they will take within 15 days. The State Plan standard must remain in effect for the duration of the Federal ETS.
9. What should counties as employers be doing in anticipation of these regulations?
The impending regulations will not supersede existing workplace and employer safety regulations being employed by the state or your county in regard to counties who have already taken action to protect residents through testing and vaccine requirements. Click here to view COVID-19 vaccine and testing requirements currently in place by federal, state and county governments as well as national private employers.Standard