On December 6, we noted on this blog post that because the injunction issued by the District Court for the Eastern District of Kentucky on November 30 prohibiting the government from enforcing the government contractor vaccine mandate against contractors and subcontractors in Kentucky, Ohio, and Tennessee had national impact, a nationwide injunction seemed to make
As we previously reported, on November 30, the District Court for the Eastern District of Kentucky (ED of KY) enjoined the government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” This follows nationwide injunctions of both the OSHA vaccine and testing Emergency Temporary…
On November 30, the District Court for the Eastern District of Kentucky enjoined the government contractor vaccine mandate issued in accordance with President Biden’s Executive Order 14042. This injunction follows an injunction issued on November 29 of the CMS vaccine mandate and the earlier injunction of the OSHA Emergency Temporary Standard by the Fifth Circuit.…
On September 9, the Biden Administration announced “The Path Out of the Pandemic;” a new COVID-19 strategy with direct impact on employers and workplace procedures. Join us for a virtual seminar in which the firm’s labor & employment attorneys will discuss recent federal action related to COVID-19 vaccine mandates and subsequent guidance from government agencies.…
The Occupational Safety and Health Administration (OSHA) has published the long-awaited Emergency Temporary Standard (ETS) as directed by President Biden in his September 9 COVID-19 Action Plan – Path Out of the Pandemic.
The ETS will take effect as soon as it is published in the Federal Register and sets forth the following two options for employers with over 100 employees:
- A mandatory vaccination policy.
- A written policy allowing employees to undergo ongoing testing and masking instead of vaccination.
Employers are required to comply with all aspects of the ETS by December 5, except for the testing program for those employers who choose to provide this option to employees. In that case, employees must either be fully vaccinated or submit proof of testing by January 4, 2022.
We break down the details below.
Which Employers Are Covered?
All employers with a total of 100 or more (full-time or part-time) employees at any time the ETS is in effect are covered. The ETS does not apply to workplaces subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where an employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502.Continue Reading OSHA Releases COVID-19 Emergency Temporary Standard: Here’s What It Means for Employers
As contractors and agencies scramble to comply with the government contractor vaccine mandate, there seems to be growing confusion over whether contractors or federal agencies are responsible for evaluating whether contractor employees working at government sites are entitled to medical or religious accommodations. In some cases, agencies tell contractors that the government, not the…
On September 9, President Biden issued Executive Order 14042 requiring that federal contractors comply with forthcoming COVID-19 workplace safety guidance. That guidance, which was issued on September 24, is remarkably broad, requiring that employees working directly on government contracts, in connection with government contracts, or in the same facility as an employee in the first…
On September 24, following President Biden’s September 9 Executive Order, Ensuring Adequate COVID Safety Protocols for Federal Contractors, the Safer Federal Workforce Task Force (Task Force) issued new guidance on COVID-19 safety protocols applicable to federal contractors and subcontractors. It is notable that the guidance does not apply to grants.
Before the guidance was released, the Director of the Office of Management and Budget determined, as required by the Federal Property and Administrative Services Act that compliance with those measures laid out in the guidance will promote economy and efficiency in federal contracting. This determination was met because decreasing the spread of COVID-19 “will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.” There is no indication that the director considered the impacts of attrition or costs on businesses to administer these requirements.
Breakdown of Requirements under New Executive Order
These requirements, in addition to any requirements applicable in a federal workplace, apply to contractors and subcontractors with a “covered contract.” The obligations that the guidelines require to be part of a soon-to-be draft contract clause include:
- By December 8, 2021, “covered contractor employees,” regardless of prior COVID-19 infection and associated immunity must be “fully vaccinated” for COVID-19. This means that at least two weeks have passed after they have received the last required dose of an approved vaccine, except in limited circumstances where an employee is legally entitled to an accommodation.
Many contractors have questions regarding when an employee may be legally entitled to an accommodation. The guidance provides that this may be the case “because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.” It continues, “[r]equests for ‘medical accommodation’ or ‘medical exceptions’ should be treated as required for a disability accommodation.”
After December, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded contract and by the first day of the performance period on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract. This also applies to contractor employees working from home on a covered contract.
- Compliance by covered contractor employees and visitors with published CDC guidance for masking and physical distancing is required while in a “covered contractor workplace.” This does not apply to covered contractor employees working from home. It does, however, require that in areas of “high or substantial community transmission,” even fully vaccinated individuals wear a mask in indoor settings. To determine the level of community spread, covered contractors must check the CDC COVID-19 Data Tracker County View website.
- Designation by covered contractors of a COVID-19 workplace safety coordinator at covered contractors’ workplaces whose primary duties appear to be communicating the required safety protocols to all covered employees and visitors and confirming compliance by reviewing the required vaccine documentation. COVID-19 workplace safety protocols may comprise some or all of this person’s regular duties.
President Biden has announced a series of measures aimed at combatting the COVID-19 pandemic which will require certain employers to set forth mandatory vaccination requirements. These measures direct the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Safer Federal Workforce Task Force (Task Force) to set forth specific guidance, which we are still awaiting. However, here is what we know now:
OSHA Emergency Temporary Standard
According to President Biden’s September 9, 2021 briefing, OSHA has been tasked with developing an Emergency Temporary Standard (ETS) requiring companies with 100 or more employees to require employees be vaccinated against COVID-19 or be tested on a weekly basis. The ETS will also require these companies to provide paid time off for the time it takes workers to get vaccinated or to recover if they are under the weather post-vaccination. The fines for violating this rule are reported to be $14,000 per violation.Continue Reading President Biden Announces Mandatory Vaccination Requirements for Certain Employers
Join us for a virtual seminar in which the firm’s labor & employment and employee benefits attorneys will discuss recent COVID-19-related announcements from the CDC, FDA and other relevant agencies, and the implications they have on how employers should structure policies and procedures moving forward.
In this session, we will provide guidance for navigating the…