Update—September 24, 2021
On September 24, 2021, guidance was released providing the framework for the September 9th Executive Order directing agencies to ensure that covered federal contracts and contract-like instruments include a clause that the contractor and any subcontractors comply with the Task Force Guidance – Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. See the link for FAQs and full details. Highlights include:
- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation.
- Covered contractors must be fully vaccinated by December 8, 2021.
- After that date, if not fully vaccinated, weekly testing, masking and physical distancing and/or accommodations must be mandated.
- 60 days to comply for urgent contracts.
- Recent antibody test not sufficient.
- Applies to small businesses as well if subject to federal contract/subcontracts.
- Applies to outdoor and remote workers, even if not in contact with others.
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
- Information on required COVID-19 workplace safety protocols must be provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces, including by communicating the required workplace safety protocols and related policies by email, websites, memoranda, flyers, or other means and posting signage at covered contractor workplaces that sets forth the requirements and workplace safety protocols in this Guidance in a readily understandable manner.
- This includes communicating the COVID-19 workplace safety protocols and requirements related to masking and physical distancing to visitors and all other individuals present at covered contractor workplaces. The designated individual (or individuals) must also ensure that covered contractor employees comply with the requirements in this guidance related to the showing or provision of proper vaccination documentation.
- Contracts awarded prior to October 15 where performance is ongoing – the requirements must be incorporated at the point at which an option is exercised or an extension is made.
- New contracts – the requirements must be incorporated into contracts awarded on or after November 14.
- Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.
Leavitt Group is here to help guide you as the law changes. For assistance with implementing these rules, contact your Leavitt Group trusted advisor.
Original article as published on September 10th, 2021:
5-Step Plan for Employers After President Biden Announces Workplace Vaccine Mandates
Contributions by Leavitt Group preferred partner for employment law, Fisher Phillips.
Authors: Nick Hulse, Todd Logsdon, Travis Vance, David Klass, Samantha Monsees, Susan Boone, Patrick Dennison, Steve Bernstein, Fisher Phillips, & Lisa Nelson, Leavitt Group Vice President, Employee Benefits Compliance & Regulatory Affairs.
Businesses will also be required to give workers paid time off to get vaccinated and to recover from any vaccine side effects as part of the forthcoming emergency rule expected from the Occupational Safety and Health Administration (OSHA). The announcement was part of the Biden administration’s “Path Out of the Pandemic,” which outlines a six-pronged, comprehensive national strategy to combat COVID-19, which also includes vaccine mandates for federal contractors, federal workers and healthcare workers (discussed below).
Details Yet to Come
Details as to what the mandate will really require will be provided in soon-to-come Guidance. Details yet unknown, include:
- Who will pay for the COVID-19 tests?
- How much paid time off will be required?
- Will the employee count include full-time equivalent employees, similar to the Affordable Care Act rules?
- What types of surcharges or other wellness program features will be effected by the mandate?
- What are the permitted incentives and/or surcharge limits?
Begin the work. Employers are encouraged to begin working through their considerations for implementing a vaccination program. For additional details on what to consider, see the previous Leavitt Group articles.
Get started on the 5-step plan (see below). While waiting for the rules to be written, you can make key decisions about how your organization will address the vaccination mandate, from a financial, cultural and legal perspective.
Educate yourself. Leavitt Group and Fisher Phillips will be holding a webinar outlining the various employment law and employee benefits compliance requirements to consider if implementing a vaccination program, including a discussion on insurance surcharge features. During this webinar, we will also discuss how all of the rules are effected by the latest Biden executive orders.
5-Step Plan for Employers Who Will Soon be Required to Ensure Employees are Vaccinated
In arguably the most far-reaching move of the COVID-19 pandemic, the Biden administration announced yesterday that federal workplace safety officials will soon issue a rule that will require all employers with 100 or more employees to either ensure their workers are vaccinated or require unvaccinated employees to produce a weekly negative test result before coming to work. Businesses will also be required to give workers paid time off to get vaccinated and to recover from any vaccine side effects as part of the forthcoming emergency rule expected from the Occupational Safety and Health Administration (OSHA). (Editor’s Note: On a September 10 webinar, Labor Department officials stated that while employers must provide paid time off for employees to receive and/or recover from the vaccine, employers could require employees to use their existing paid time off for this purpose.) The announcement was part of the Biden administration’s “Path Out of the Pandemic,” which outlines a six-pronged, comprehensive national strategy to combat COVID-19, which also includes vaccine mandates for federal contractors, workers and healthcare workers (discussed below). Here is a summary of the expected rule along with a five-step action plan you can implement immediately.
Vaccine Mandate for Employers with 100+ Employees
The cornerstone of the plan involves OSHA issuing a vaccine/testing rule that will apply to all private employers with more than 100 employees – which is estimated to impact 80 million workers, or two-thirds of the country’s workforce. This rule will take the form of an Emergency Temporary Standard (ETS), which allows the agency to enact regulations it can enforce immediately if a “grave danger” to worker safety is present. Covered employers who ignore the standard could face OSHA citations and penalties of up to $14,000 per violation. Although it is currently unclear, this likely means a fine of up to $14,000 for each facility inspected by OSHA where a covered employer has not implemented a mandatory vaccine policy or otherwise complied with the ETS.
Which Employers Will Be Covered?
As OSHA will be the agency responsible for issuing and enforcing the ETS, all employers covered by the OSH Act must comply with the forthcoming ETS. Many office-based employers do not even realize they fall under this statute and are not accustomed to interacting with OSHA, including financial institutions, insurance companies, law firms, and other professional and technical work environments.
When Will the ETS Likely be Issued?
While the Biden administration did not set out a timeline or deadline for OSHA to issue the ETS, it is clear that the administration is taking an aggressive approach. It is likely that OSHA will issue the ETS relatively quickly – perhaps in the next several weeks, especially if it has been in the works behind the scenes for some time now. After it is issued, OSHA will likely strive for a timeline of 75 days before it starts enforcing the ETS to remain consistent with the Biden administration’s proposed deadline for federal workers to obtain the vaccine. (Editor’s Note: On a September 10 webinar, Labor Department officials stated that the ETS will be issued in the “coming weeks,” but did not provide a specific date.)
Once issued, the ETS will have immediate effect in the 29 states where federal OSHA has jurisdiction. But in states where the federal government does not have jurisdiction over workplace safety (OSHA-state-plan states such as California, Tennessee, North Carolina, and Kentucky) these agencies will have to adopt the ETS or “just-as-effective measures” within 15 to 30 days.
How Long Will the ETS Last?
The ETS can remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period.
The 7 Biggest Unanswered Questions
The details of what the ETS will include are scarce at this point, leaving many questions unanswered. The seven biggest unanswered questions for employers at this point:
- Will remote employees be covered? Unless the ETS specifically addresses remote employees, remote employees likely will not be covered by the emergency rule. OSHA largely avoids addressing safety issues concerning employees working from home. (Editor’s Note: On a September 10 webinar, Labor Department officials confirmed that remote workers not working in contact with others would not be covered by the emergency rule provided they don’t come to the workspace.)
- How will the 100-employee threshold be counted? It is unclear whether the 100-employee threshold will be considered on a per location or company-wide basis. Given other standards that mandate certain requirements based on employer size, the threshold likely will be on the total number of workers employed by the company. It is also unclear whether a joint employer analysis will apply to the calculation of employees. (Editor’s Note: On a September 10 webinar, Labor Department officials confirmed that the 100-employee threshold will be counted on a company-wide basis.)
- Will employers be required to collect proof of vaccination? Whether the ETS requires employers to collect proof of vaccination may have a huge impact on employers. OSHA’s record retention regulations require that employers preserve and maintain employee medical records for the duration of employment plus 30 years. Therefore, if the ETS requires employers to collect proof of vaccination, you may be required to maintain that record for the duration of the employee’s employment plus 30 years. (Editor’s Note: On a September 10 webinar, Labor Department officials confirmed that information regarding collection and verification of vaccination status will be outlined in the ETS.)
- What type of testing will be required? It is unclear whether the ETS will mandate a particular type of COVID-19 test (antigen, PCR, etc.). While the PCR test is more accurate, it takes longer to receive the results and is more expensive.
- Who Pays for Testing? While the Plan proposed to improve access to COVID-19 tests – even suggesting that retailers will offer to sell those rapid tests at cost for the next three months – the question of who pays for testing remains unanswered. Generally, however, any testing protocols must comply with applicable wage and hour laws, which provide that time spent on receiving employer-required tests should almost always be treated as compensable. Indeed, the Department of Labor’s COVID-19 and the Fair Labor Standards Act Questions and Answers, published before the Plan’s announcement, provides that employers are required to pay employees for time spent waiting for and receiving medical attention (including COVID-19 testing) at their direction or on their premises during regular working hours under the Fair Labor Standards Act (FLSA). This likely includes required testing occurring on employees’ days off if such testing is necessary to perform their jobs safely and effectively during the pandemic. Regarding the tests themselves, while insurance may cover the cost of tests, several states have laws predating COVID-19 requiring employers to pay for mandatory medical tests or reimburse employees for any such testing. (Editor’s Note: On a September 10 webinar, Labor Department officials confirmed that the ETS will contain information about who bears the responsibility for COVID-19 testing costs.)
- Will unionized employers be required to bargain over the decision of how to comply with the ETS? It remains to be seen whether and to what extent unionized employers would be compelled to bargain over the decision to effectuate compliance with the new mandate (or at least the discretionary aspects with respect to vaccines vs. weekly testing) under NLRB doctrine. At a minimum, you should prepare for a corollary obligation to bargain over the effects of that decision on demand. In the meantime, non-union employers should consider the practical implications of compliance from a labor relations perspective, as unions may attempt to leverage aspects of the new requirements for organizing purposes. (Editor’s Note: On a September 10 webinar, Labor Department officials confirmed that the ETS will not change any collective bargaining agreement obligations, similar to all other OSHA standards.)
- Will the ETS face legal challenges? As with any broad sweeping policy, any ETS that is adopted is likely to face legal challenges. Governors of many states have already indicated that they intend to challenge any ETS. It is possible that a court could even block enforcement of the emergency rule until the legal challenges are resolved. OSHA will have to prove that there is a “grave danger” to the workers of large employees in order for the ETS to withstand a legal challenge, which may be a difficult task.
What Should You Do? A 5-Step Action Plan for Employers
Here is a five-step action plan you can implement immediately to put yourself in the best position to comply with the expected ETS.
- Adopt Procedures for Determining Employees’ Vaccination Status. You should prepare to implement a system for asking employees whether they have been vaccinated and maintain confidential records of employee vaccination status. The Equal Employment Opportunity Commission has indicated that it is generally lawful for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws. In most cases, the answer to that question alone may be all you really need. The ETS likely will require that you not only ask for vaccination status but collect proof of vaccination. If this is the case, you should ask employees to show you documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. In lieu of collecting vaccination records, you can create a confidential list of vaccinated workers in order to minimize legal risks and requirements associated with retaining medical documentation, including checking state laws regarding confidentiality and privacy of medical records. If you decide to collect vaccination records, it is recommended that you treat those records as you would other medical records.
- Determine if You Will Mandate the Vaccine or Allow Unvaccinated Employees to be Tested Weekly. You will also need to determine whether you will adopt a mandatory vaccination policy or allow unvaccinated employees to be tested weekly. For some employers, collecting and tracking weekly test results may burden them such that they decide to adopt a mandatory vaccination policy.
- Develop a Plan for Handling Accommodation Requests. For those employers that adopt a vaccine mandate, develop a robust and clear reasonable accommodation policy to address religious and disability issues. Take special care to communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request. You should also be prepared for employees to request an accommodation from the weekly testing requirement – an accommodation process that must be addressed separately from requests for exemptions from any vaccination mandate. For a detailed discussion of this topic, please refer to An Employer’s 3-Step Guide to Responding to COVID-19 Vaccine Religious Objections.
- Have a Plan for Tracking Test Results. For employers who allow individuals who are not fully vaccinated to undergo weekly COVID-19 testing in lieu of receiving the vaccine, you should have a plan in place for collecting and tracking test results. If regular employment-related testing is not covered by the employee’s health insurance and free testing is not feasible, you will need to review the applicable federal, state, and local employment laws to determine if you must pay for testing. Further, under the federal FLSA, employers must pay nonexempt employees for the time spent undergoing testing during the workday.
- Prepare for OSHA Complaints and Inspections. As a reminder, the vaccination ETS will not displace current compliance duties related to COVID-19 prevention and mitigation. Social distancing, masking, sanitizing, and other safety steps you may already be required to take under existing OSHA and CDC guidance, or state or local public health orders, remain in effect. Therefore, in addition to the requirements of the new ETS, OSHA likely will ask for your COVID-19 response plan and training records if it receives a complaint or conducts an in inspection concerning the vaccine mandate ETS. If not already in place, develop a COVID-19 policy and communicate its requirements to your employees. Train managers and supervisors on what to do and say if OSHA arrives for an inspection. This effort could save your company from paying significant fines.
You should begin preparing now for the forthcoming Emergency Temporary Standard by establishing policies for determining employees’ vaccination status and procedures for tracking weekly test results. You should also prepare for the possibility that employees may refuse to comply with the requirements of the ETS and begin planning and appropriate response – which would include terminating their employment. See OSHA ETS for more details on COVID-19 OSHA Emergency Temporary Standards page that also includes many helpful templates and tools.
Federal Contractors Subject to New COVID-19 Vaccine Mandates
Contributions by Leavitt Group preferred partner for employment law, Fisher Phillips.
Authors: Cheryl Behymer, Hannah Sweiss, Fisher Phillips & Lisa Nelson, Leavitt Group Vice President of Employee Benefits Compliance & Regulatory Affairs
Prior to this latest, more broad vaccination mandate, federal employee COVID-19 safety protocols issued on July 29 simply required vaccination certification or testing for “every federal government employee and onsite contractor.” Onsite contractors who cannot confirm they are fully vaccinated will still have to follow safety protocols (masking wearing, maintaining workplace social distancing, complying with weekly or twice weekly COVID-19 testing, and limiting official travel). But now most federal contractors – regardless of whether they have employees working on federal property – will soon be required to follow new vaccine mandate requirements, effective for contracts with pending solicitations or entered into on or after October 15.
As part of the Biden administration’s “Path Out of the Pandemic” plan released yesterday, President Biden issued an executive order adding COVID-19 vaccination requirements effecting nearly all federal contractors.
Which Federal Contractors are Impacted?
Effective immediately, the new rules will apply to any new contract or new contract-like instrument, including a new solicitation, extension, or renewal or exercise of an option, provided it is:
- a procurement contract for services, construction or a leasehold in real property;
- a contract covered by the Service Contract Act (SCA);
- a contract for concessions, including concessions excluded generally under the SCA; or
- a contract in connection with federal property or lands offering services for federal employees, dependents, or the general public.
Contracts NOT covered include:
- Indian Tribes contracts or contract-like instruments;
- those with a value equal to or less than the FAR simplified acquisition threshold;
- agreements involving employees performing work outside the U.S.; and
- subcontracts solely for the provision of products.
In addition, federal contractors or subcontractors with Walsh-Healey Act contracts (that is, manufacturing contracts) are apparently not covered by the new executive order.
What are the Requirements?
Additional details that will provide the specifics as to what will be required is expected by September 24, when the Safer Federal Workforce Taskforce issues further “Guidance” specifying the exact requirements for federal contractors. This Guidance must be approved by the Director of the Office of Management and Budget before it will be released and become effective.
What is Known Now?
- All applicable contracts must include a flow-down clause to incorporate the safety protocol requirements in lower-tier subcontracts.
- The clause shall specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force Guidance at any workplace locations where an individual is “working on or in connection with a Federal Government contract or contract-like instrument.”
Thus, these requirements may also apply to remote employees, if they are working on qualifying contracts, although the remote employee issue should be made clear in the Guidance.
- Although the Executive Order is effective “immediately”, certain requirements will apply to new contracts, renewals, and exercises of options on or after October 15, 2021.
- Entities subject to these rule are encouraged to follow the new safety protocols specified in the Guidance, to the extent possible.
What Should You Do Next?
- Evaluate if any of these requirements apply to your workforce.
- Consider related logistics, including compensation issues that may be implicated for travel costs for receiving the vaccine or testing, and any other related reimbursement costs. Make sure you also understand when employees must be paid for their time, such as supplemental paid sick leave for time taken to receive the vaccine or to recover from vaccine side effects. Consider who is responsible for these costs. See previous Leavitt Group articles for more details on COVID-19 leaves.
- Covered federal contractors are also those subject to the federal paid sick leave requirements.
- Determine if you will require employees to provide some other form of proof of vaccination outside of the attestation form required by the Federal Government, and how proof of vaccination will be collected, kept, and who will have access to the confidential information.
- HIPAA and ADA must be considered.
- Be mindful of privacy laws when collecting and/or sharing information about employees.
- HIPAA and ADA must be considered.
- Review your accommodations policies and procedures regarding vaccinations, testing, and mask wearing and be prepared to engage in this process with employees .
- How will you handle requests from government agencies that only fully vaccinated workers will be allowed onsite?
- Watch for the specific Guidance requirements, due to arrive on September 24.
It is advisable that employers start considering their options for a vaccination program. For more details on considerations when thinking about developing a vaccination program, see the previous Leavitt Group articles. We will stay on top of these issues for you and provide a news alert once regulations or any additional guidance is released. Be sure you are subscribed!