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The Biden administration announced a six-pronged, comprehensive action plan to curb the spread of COVID-19 on Sept. 9, including vaccine mandates for large employers.
- Vaccinating the Unvaccinated;
- Further Protecting the Vaccinated;
- Keeping Schools Safely Open;
- Increasing Testing & Requiring Masking;
- Protecting Our Economic Recovery; and
- Improving Care for those with COVID-19.
Most relevant to employers is the effort to vaccinate the unvaccinated, with the administration announcing its intent to “substantially increase the number of Americans covered by vaccination requirements” by requiring certain employers to mandate vaccines or regular testing. The president’s plan for increasing the number of fully vaccinated people targets three groups — federal employees, federal contractors’ employees and employers subject to the Occupational Safety and Health Administration’s (OSHA) forthcoming Emergency Temporary Standard (ETS).
The president signed an executive order on Sept. 9 ordering all federal government employees to be vaccinated. On Sept. 13, the Safer Federal Workforce Task Force (“Task Force”) issued additional FAQs for federal workers, stating that they must be fully vaccinated by Nov. 22. This overrides President Biden’s July order that federal workers be vaccinated or submit to weekly or bi-weekly testing. According to the Office of Personnel Management (OPM) as of June 2020, the federal government employed approximately 2.1 million civilian workers in the United States.
Federal Contractors’ Employees
The Federal Property and Administrative Services Act grants the president board authority over federal contractors to ensure “economy and efficiency” in the procurement of goods and services for the federal government. Relying on the authority granted him by the act, on Sept. 9 President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which directed the Task Force to issue guidance requiring “contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument.”
On Sept. 24, the Task Force released Safer Federal Workforce Task Force Guidance. The guidance requires all covered federal contractor and subcontractor employees to be fully vaccinated by Dec. 8. After Dec. 8, all covered contractor employees must be fully vaccinated by the first day of the period of performance of a newly awarded covered contract. The new vaccination obligation applies to all employees working on or in connection with a federal contract, regardless of whether they work at a federal facility, a covered contractor’s workplace, or remotely. The only exception is for those employees who are legally entitled to an accommodation based on disability or religion.
- All prime contractors and subcontractors at any tier who are parties to a covered federal contract. A covered contract is one that complies with the broad definition of contract or contract-like instrument in the Department of Labor’s (DOL) proposed rule, Increasing the Minimum Wage for Federal Contractors, which includes all prime and subcontracts at any tier.
- Covered contractors are required to “flow down” the contract clause to subcontractors but have no obligation to verify subcontractor compliance.
- Contracts awarded prior to Oct. 15 must incorporate vaccine clauses when an option is exercised, or an extension is made. New contracts awarded on or after Nov. 14 must incorporate the vaccine clauses. In the interim, contractors are encouraged to adopt the vaccine protocols.
Employees Subject to the Mandate
- All full-time and part-time employees of a covered contractor who are working on or in connection with a covered contract or subcontract or at a covered contractor workplace, will be required to be vaccinated, including those working remotely. The only exceptions are for employees legally entitled to an accommodation based on a disability or sincerely held religious belief.
- FAQ 10 specifically addresses remote workers: “An individual working on a covered contract from their residence is a covered contractor employee and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace.”
- Employees considered performing work “in connection with” a covered contract are those who perform duties necessary to the performance of a covered contract, but who do not directly engage in performing the specific work called for by the covered contract “such as human resources, billing and legal review.” This definition of “in connection with” is broader than the meaning set forth in the proposed minimum wage regulations, which states that a “worker performs ‘in connection with’ a contract if the worker's work activities are necessary to the performance of a contract but are not the specific services called for by the contract.”
- The guidance states that it does not apply to covered contractor employees who only perform work outside the U.S. However, a citation in the guidance to the Federal Acquisition Regulations indicates otherwise.
Proof of Vaccination
- Covered contractors are required to review (but not to retain copies of) their covered employees’ vaccination documentation which contractors may allow to be digital. An attestation by a covered contractor employee is not an acceptable substitute for documentation of proof of vaccination. Moreover, covered contractors cannot accept a recent antibody test as proof of vaccination and employees who have had COVID-19 are still required to be vaccinated.
- Covered contractors are not required to determine the vaccination status of visitors or others; the only requirement is that they post signage at entrances on safety protocols, including masking and social distancing.
- Covered contractors are required to ensure that all individuals including covered contractor employees and visitors wear masks and social distance in areas of high or substantial community transmission, as determined by CDC, except in limited circumstances of working alone in an office with a door or when eating or drinking.
- Covered contractors are to designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
- This guidance applies to contractor or subcontractor workplaces that are outdoors.
Relationship to Other Laws
- The guidance states that it supersedes any contrary state or local law or ordinance unless applicable state or local laws are more protective than those set for in the guidance.
- Contractors must comply with this guidance regardless of whether they are subject to other workplace safety standards, such as OSHA’s anticipated Emergency Temporary Standard on COVID-19.
There are a growing number of legal challenges to Biden’s executive order, and more are anticipated in connection with the guidance. The application of the guidance to remote workers is a clear overreach. Moreover, states and localities that prohibit mandatory vaccination polices and masking will lead the charge in challenging the guidance.
Nonetheless, federal contractors need to immediately develop and implement plans for compliance, as it is likely that the new contracting obligations will be implemented — at least to some extent.
Emergency Temporary Standard
The third prong of President Biden’s plan to increase vaccination rates is a directive to OSHA to issue an Emergency Temporary Standard (ETS), requiring employers with 100 or more employees to ensure that their employees are fully vaccinated or subject to weekly testing. The ETS will also require these employers to provide paid time off for their employees to get vaccinated or to recover if they are “under the weather post-vaccination.” The ETS will be issued without any formal opportunity for comment.
The president previously directed the Centers for Medicare & Medicaid Services to take action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursements, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings and home health agencies.
There is little information available regarding the scope and terms of the ETS. The DOL has indicated that it expects to issue the ETS within weeks. As to those employees who work remotely full time, it is anticipated that OSHA may not require them to be vaccinated or test weekly as long as they do not come into the workplace or have personal interaction with other workers.
Although employers will still have an obligation to reasonably accommodate workers’ disabilities and religious beliefs, the fact that workers have the alternative to test weekly should be a sufficient accommodation for most workers.
Next Steps for Employers
All employers that are federal contractors or subcontractors or that have 100 or more employees should begin determining which of their employees are fully vaccinated. Federal contractors and subcontractors should develop a process to document the employees’ vaccination status, as they are not required to maintain vaccination documentation. It is unclear at present what OSHA will require in the way of documentation, but employers covered only by the OSHA ETA should begin to gather vaccination data on their employees.
As any documentation of employees’ vaccination status is considered by EEOC to be confidential under the ADA and should be treated as medical information, employers should determine how they are going to collect and securely maintain evidence of vaccination status.
As many employees who oppose the vaccination mandates are expected seek reasonable accommodation based on disability or religion, all employers should review their reasonable accommodation process and reissue protocols for seeking an exemption from vaccine mandates based on a disability or sincerely held religious belief.
As federal contractors and subcontractors have only a short time in which to ensure employees are vaccinated and the ETS is expected to be issued in a few weeks, now is the time for all employers that are covered by these requirements to prepare to implement these requirements.
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About the Authors
Consuela Pinto is a shareholder and head of the pay equity practice at Fortney Scott LLC.
H. Juanita Beecher is counsel to Fortney Scott LLC. with a focus on OFCCP regulatory affairs.