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:

  1. A mandatory vaccination policy.
  2. 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 contractor, is responsible for adjudicating accommodation requests.  In others, agencies are demanding to see the justification for accommodation determinations and independently evaluate those determinations.

This confusion is unfortunate because it is clear that the contractor, not the government, is responsible as the employer. To the extent agencies are usurping contractors’ obligation to make these determinations, the government is increasing the likelihood it will be viewed as a joint employer, needlessly exposing both the government and contractors to potential liability.

Employers are Responsible for Making Accommodation Determinations

For decades, employees have had the right to request medical accommodations under the Americans with Disabilities Act (ADA) and religious accommodations under Title VII of the Civil Rights Act of 1964. Those requests have always been submitted to their “employer,” even when those employees work at an off-site location.

Read this article on the Bass, Berry & Sims GovCon & Trade blog.

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 two categories be vaccinated by December 8, 2021, among other requirements.

Since the guidance was issued, FAR and DFARS deviations have been issued. Those provisions will start appearing in government contracts soon, and similar provisions will be included in contract-link instruments.

These requirements have raised a host of questions, including:

  • Do these rules apply to my company?
  • Do my employees need to get vaccinated? Which ones?
  • What records do companies need to prove employees are vaccinated?
  • Besides trying to vaccinate everyone, what else do I need to do?
  • Does this need to be flowed down in all of my subcontracts?
  • Do these requirements apply to prime contracts solely for goods?
  • Do companies have to grant religious and medical accommodations? How should that be documented?

Please join us for a webinar on October 19, 2021 at 1:00 p.m. ET / 12:00 p.m. CT, as we address these questions and much more. To register, please click here.

Who Should Attend?

  • In-house legal counsel.
  • Human resources professionals.
  • Compliance officers
  • C-level executives, consultants and principals in companies that are working to bring employees back to the workplace.

Accreditation

Tennessee CLE
This program is approved for 1.5 hours General Tennessee CLE credit. Please provide your BPR number upon registration in order for Bass, Berry & Sims to report your participation to the Tennessee CLE Commission.

Other State CLE
Bass, Berry & Sims does not seek direct accreditation from states outside of Tennessee, but some states allow attorneys to earn credit through reciprocity or self-submission. Certificates of completion and other common supporting documents will be provided for use in jurisdictions outside of Tennessee.

HRCI
This program is approved for 1.5 hours HRCI credit. Please provide the email address associated with your HRCI account upon registration in order for Bass, Berry & Sims to report your participation to HRCI.

Questions?

Submit your questions for presenters upon registration or email questions to Brandy Bea.

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.

Continue Reading Contractors, You Will Get the Jab!

I enjoyed attending the recent 2021 Tennessee Society for Human Resource Management (TN SHRM) Conference & Expo last month and was thrilled to host a session titled “FMLA Cases Presenting Cutting Edge Legal Issues: Are You Prepared to Defend Your Organization from Challenge to Your FMLA Administration?”

Following my session, I had the opportunity to sit down with Cynthia Thompson, editor and publisher of HR Professionals Magazine to further discuss key issues that employers should know about FMLA challenges.

As almost every employer knows, managing leaves of absence can be a challenge.  But, I find that it is helpful to remember the purpose being served by the leave being considered.  It also is helpful to distinguish the leave for which an employee qualifies and the benefits for which an employee may qualify while our on an authorized leave.

Watch the video for our full conversation, and subscribe to this blog for the latest updates on FMLA and other labor & employment and employee benefits laws affecting employers.

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 ever-challenging issues facing employers, including:

  • Mandatory Vaccinations.
  • Mask Policies.
  • Incentive Programs.
  • Accommodation and Exemption Requests.

WEBINAR DETAILS

Title: Labor & Employment Law Update: Continued COVID-19-Related Developments and Policy Guidance for Employers

Date: Wednesday, September 29, 2021 Time: 10:00 a.m. – 11:00 a.m. CT

Who Should Attend

  • In-house legal counsel.
  • Human resources professionals.
  • C-level executives, consultants and principals in companies that are working to bring employees back to the workplace..

This program is pending approval for HRCI and Tennessee CLE credit (1 hour)

Tennessee recently enacted a minimal expansion of its medical marijuana law.  The law took effect May 27, 2021, and it slightly enlarges the medical conditions for which persons may possess a very limited amount of tetrahydrocannabinol (THC).  Previously, Tennessee law allowed only those diagnosed with intractable seizures or epilepsy to possess a limited amount of medical cannabis oil.  The law also creates a commission to study the possibility of future medical marijuana legalization.

The new measure allows individuals who have the following medical conditions to possess CBD oil containing less than 0.9% of THC:

  • Alzheimer’s disease.
  • Amyotrophic lateral sclerosis (ALS).
  • Cancer, when such disease is diagnosed as end-stage or the treatment produces related wasting illness, nausea and vomiting, or pain.
  • Inflammatory bowel disease, including Crohn’s disease and ulcerative colitis.
  • Epilepsy or seizures.
  • Multiple sclerosis.
  • Parkinson’s disease.
  • Human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS).
  • Sickle cell disease.

Continue Reading Tennessee Expands (Minimally) Medical Marijuana Law and Establishes Cannabis Commission

The first few years of operations can be an overwhelming task for emerging companies, especially when it comes to navigating the wide range of employment laws that come with hiring new members of the team. Below is a list of issues to be aware of as you build and structure your workforce. Continue reading to learn some best practices for circumventing legal risks related to:

  • Hiring.
  • Employee classification.
  • Wages.
  • Employment contracts.
  • Employment policies.

Continue reading on bassberry.com

Effective July 1, 2021, Tennessee’s Constitution Carry law allows individuals over the age of 21 (or military members between ages 18 to 20) to carry a firearm, both concealed and open, with or without a carry permit.  However, this new law does not impact a private Tennessee business’ right to prohibit the possession of weapons on its property, including possession by employees; provided, the business displays the required notice outlined in T.C.A. Section 39-17-1359 and permits individuals to store the firearm within his or her vehicle under Tennessee’s Guns in Trunks law (T.C.A. Section 39-17-1313).

As a refresher, Tennessee’s Guns in Trunks law allows individuals to transport and store a firearm or firearm ammunition in the person’s motor vehicle while on or utilizing any public or private parking area if the following is true:

  • The person’s motor vehicle is parked in a location where the motor vehicle is permitted to be.
  • The firearm or ammunition being transported or stored in the motor vehicle is kept from ordinary observation if the person is in the vehicle, or if the person is not in the vehicle, is kept from ordinary observation and locked within the trunk, glove box, or interior of the person’s vehicle or a container securely affixed to the vehicle.

If you have any questions about this topic, please contact the author.