On the second full day after President Biden took office, his administration released a broad-based, ambitious, 200-page National Strategy For The COVID-19 Response and Pandemic Preparedness (the “Plan”). The Plan’s stated objective is to “provide a roadmap to guide America out of the worst public health crisis in a century,” and sets forth seven goals to achieve that objective. The Plan emphasizes that the federal government’s actions will be founded in science and data and will be coordinated through a new COVID-19 Response Office.
Important for employers, however, is that the Plan’s success “requires sustained, coordinated, and complementary efforts of … groups across the country, including … health care providers; businesses; manufacturers critical to the supply chain, communities of color, and unions.”
While much of the Plan focuses on government initiatives, including a robust public education, testing, and vaccination plan that relies on local government cooperation, there are some key provisions that are directly or indirectly applicable to employers, including the following:
- OSHA Emergency Temporary Standard: Under the Plan, and through an executive order we recently reported on, the Biden administration has directed the Occupational Safety and Health Administration (OSHA) to issue an “Emergency Temporary Standard” that would require employers to implement certain pandemic-related health and safety measures, such as mask-wearing and social distancing while employees are on duty. While the Centers for Disease Control and Prevention (CDC) has long published social distancing and mask-wearing guidance, an OHSA-enforced Emergency Temporary Standard would have a much greater and more immediate impact on employee health and safety standards in the private sector. On Friday, January 29, 2021, OSHA published “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which is likely a foreshadowing of what the Emergency Temporary Standard will require. Employers should consult counsel to ensure they are meeting current recommended workplace safety protocols and the Emergency Temporary Standard once published.
- OSHA National Emphasis Program: In addition to publication of an Emergency Temporary Standard, the Plan directs OSHA to strengthen its enforcement efforts and to launch a National Emphasis Program, which will focus the agency’s enforcement resources on workplace violations that it believes put the largest number of workers at serious risk of illness. While it is too soon to know what these redoubled enforcement efforts will look like, it is reasonable to assume that they will focus on industries and businesses with large public-facing workforces (i.e., larger retailers, grocery stores, health care workers, etc.) and those serving critical infrastructure (i.e., food processing and manufacturing, public utilities, construction, etc.). It is expected that Congress will allocate additional funding for OSHA enforcement in the coming weeks to help achieve these ends.
- ·Dissemination of PPE, Testing and Vaccinations for Essential Workers: Widely and cheaply available personal protective equipment (PPE), such as masks, gloves, and face shields, are known to help slow the spread of COVID-19, but national shortages have made a consistent approach to PPE use challenging. Under the Plan, the Biden administration is seeking to work with federal and state agencies to invest in and purchase large quantities of PPE for frontline workers, signaling a willingness to invoke the Defense Production Act to ensure supply chains are not interrupted. Likewise, adequate and quick testing ensures sick employees stay home and provides data needed to track COVID-19’s community spread.
- The Plan accordingly calls for a vast expansion of testing capabilities. Finally, and most critical to ending the pandemic, the Plan calls for accelerating the pace of vaccine production and distribution, with an emphasis on vaccinating frontline and essential workers first. Employers with large unionized workforces, and those in the critical infrastructure space, may start to see federal and local government resources available to help ensure workforce protections through on-site vaccination campaigns, but to date the Biden administration has not specified the particular resources or how those on-site vaccinations will operate. Importantly, however, the Plan pledges to provide employers with educational tools about the benefits of vaccinations, which may help reduce skepticism among employees about COVID-19 vaccines.
- Expansion of Paid Leave Programs: While Congress did not extend the mandatory paid leave provisions of the Families First Coronavirus Response Act (FFCRA) beyond December 31, 2020, (though, as we previously discussed, employers can voluntarily provide FFCRA leave to eligible employees through March 31, 2021, and seek the corresponding tax credits), the Plan seeks to reinstate FFCRA paid leave provisions and expand employee eligibility for such leave by removing exemptions, including those for large employers. While reinstatement and expansion of the FFCRA will almost certainly require congressional action, employers should begin considering whether and how they can implement processes and procedures to account for expanded paid leave requirements in the future.
As President Biden seeks to quickly address many of these initiatives through executive action, and if Congress itself takes further action, it remains critically important that employers stay up to date and consult legal counsel to ensure they are compliant with current obligations and best practices.
