Game Changer: Highlights of the President's
New Pandemic Strategy

September 10, 2021

Yesterday, President Biden ramped up federal efforts to curb the COVID-19 pandemic, announcing a new, six-point Path Out of the Pandemic plan. In it, he announced new requirements that the Community Action network needs to be aware of and plan for. These include: (1) a new COVID-19 vaccine mandate for federal contractors, which explicitly does not apply to federal grantees; (2) a COVID-19 vaccine mandate for all Head Start employees; and (3) a planned Department of Labor Occupational Safety and Health Administration (OSHA) rule requiring all employers with 100 or more employees to impose COVID-19 vaccine and testing mandates. Together, the new mandates are expected to cover about 100 million workers, or approximately two-thirds of the nation’s workforce.

Vaccine Mandate for Federal Contractors and Employees

First, President Biden signed two executive orders, one requiring all federal executive agencies to mandate COVID-19 vaccinations for all federal employees, and a second requiring all federal contractors and subcontractors to mandate vaccinations for their employees. The executive order that applies to federal contractors requires federal agencies to include the vaccine mandate in new contracts, subcontracts, and contract extensions or renewals entered into with the federal government on or after October 15, 2021. Neither mandate gives employees the option to undergo regular COVID-19 testing in lieu of being vaccinated. Both executive orders require the Safer Federal Workforce Task Force (created by January’s “Protecting the Federal Workforce and Requiring Mask-Wearing" executive order) to issue guidance on the implementation of these new requirements within 7 days.

As CAPLAW has previously clarified, most CAAs and Community Action Network organizations are federal grantees rather than federal contractors, and these executive orders explicitly do not apply to federal grants. Consequently, CAAs and other Community Action Network organizations are generally not obligated by these executive orders to require employee vaccination.

The federal government distinguishes between those vendors from which it buys products or services to be used by the government (i.e., contractors), and those entities to which it provides funds to benefit the public at large (i.e., grants or federal assistance). The Uniform Guidance notes that the substance of the relationship is more important than the form of the agreement. It lists the characteristics used to determine whether the relationship created is that of a contractor or grant recipient. 2 C.F.R. §200.331.

Even though CAAs may have an agreement called a “contract” for an award, this does not automatically mean that the CAA is a federal contractor. For example, federal funds that are passed through by a state do not make a CAA a federal contractor, even if the state refers to the CAA as a “contractor”. Terms such as “financial assistance award,” “notice of grant award,” “grant agreement,” “grant award,” “loan” or “cooperative agreement” often indicate that the CAA has a grant or other federal assistance, and not a contract. If the CAA's agreement contains language such as "order for supplies and services", this may indicate a contractor relationship.

Vaccine Mandate for Head Start Teachers and Staff

Second, the President’s six-point plan mandates the COVID-19 vaccine for all teachers and staff at Head Start and Early Head Start programs as part of its strategy to keep schools open safely. The Office of Head Start (OHS) issued a letter on September 9 indicating that all Head Start staff will be required to be vaccinated by January 2022, and the U.S. Department of Health and Human Services will issue regulations to implement the mandate.

OHS’s letter states that “all Head Start employees” will be subject to the vaccination requirement. Under the ADA and the Title VII of the Civil Rights Act, Head Start programs will still need to provide reasonable accommodation to employees who cannot be vaccinated based on a disability or sincerely-held religious belief. The letter from OHS emphasizes that vaccinations are a foundational part of the CDC-recommended, layered COVID-19 prevention strategies which help protect children and adults who are not fully vaccinated. Layered mitigation strategies include vaccines, masking, health screenings, physical distancing, ventilation, hand hygiene, and cleaning.

We expect that more detailed guidance will be issued over the next several days and weeks that will help Head Start grantees navigate these new requirements. Until then, there are several open questions:

• Will the vaccination mandate apply to employees whose salaries are partially, but not primarily, funded by Head Start?
• Will there be a “test-out” option, by which Head Start employees may elect to undergo regular COVID-19 testing in lieu of receiving a vaccination?
• What type of documentation will be required of employees proving their vaccination status?
• May Head Start grantees terminate employees who refuse to comply with the mandate?
• What penalties do Head Start grantees face for noncompliance?
• Will there be any transition relief available for Head Start grantees who cannot meet the full enrollment requirements due to staffing shortages triggered by the new mandate?

While we await further guidance, CAAs with Head Start programs should prepare to implement or update their written vaccination and COVID-19 mitigation policies in light of the new mandate. Agencies should also consider the practical implications of requiring vaccination only for their Head Start staff.

The Office of Community Services (OCS), which oversees the Community Services Block Grant (CSBG), simultaneously issued a Dear Colleague Letter in support of the Head Start mandate. The letter does not impose a vaccine mandate for CSBG staff but emphasizes that the COVID-19 vaccine is one of the best tools agencies have to keep themselves and their clients as safe and healthy as possible. This aligns with OCS’s priorities expressed in Information Memoranda 157 and 161, which focus on ways the Community Action network can use CSBG CARES funds to protect the health and well-being of staff and clients, including through promotion of the COVID-19 vaccination.

Expected OSHA Vaccine Rule for Private Employers with 100+ Employees

Finally, in his six-point plan, President Biden directed OSHA, which oversees workplace safety, to issue an Emergency Temporary Standard (ETS) for employers with 100 or more employees that will require those employers to mandate COVID-19 vaccinations or weekly negative tests for unvaccinated employees. Covered employers must also offer paid time off to employees to get vaccinated. Employers that don’t comply with the vaccine or paid time off mandate could face fines of up to $14,000 per violation, according to the Biden administration.

While this directive to issue the ETS does not yet create any obligations for employers, once issued, it will take immediate effect until superseded by a permanent standard. Upon release, the ETS will be published in the Federal Register as a proposed permanent standard, subject to a limited public comment process.

As this is an anticipated rule, there are many open questions, including:

• How long will employers have to implement the ETS?
• Do part-time, temporary, or seasonal employees count towards the 100-employee threshold?
• Who (employers, employees, or the federal government) will pay for the costs of the required vaccinations/testing?
• Will the federal government reimburse employers for the cost of providing paid leave to employees to get vaccinated?
• Who (the employer or individual employees) gets to choose between the vaccination and testing options?
• What type of documentation will be required of employees proving their vaccination status?
• Can employers still provide incentives to employees for receiving vaccinations?
• How will compliance with the ETS be tracked and enforced?
• How will the ETS apply in states that have their own OSHA-approved state plans, which is the case in approximately 50% of states?

CAPLAW will continue to monitor these developments and will update the network when applicable, including when OHS and OSHA issues additional guidance and rulemaking. As a reminder, employers remain free to mandate that their employees be vaccinated. For additional information on issues to consider when implementing a mandate, see CAPLAW’s Do’s and Don’ts of Workplace COVID-19 Vaccinations.

This news flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-03-02. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.