9.10.21

You can lead a horse to water, but you can’t make him get vaccinated. Well, maybe you can.

President Biden issued announcements yesterday relating to mandatory COVID-19 vaccinations. One announcement applies to all employers with 100 or more employees. The other applies to federal contractors. We will be addressing both in this bulletin.

Employers with 100 or more employees: Mandatory vaccines, or weekly testing

In its Guidance titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” the Occupational Safety and Health Administration “strongly encouraged employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects,” and further suggested that employers should also “consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing.” Some major employers have already begun to require parts of their workforce to get vaccinated. However, most have not, and a large segment of the public continues to resist being vaccinated. As the effort to increase vaccinations has largely stalled, the Delta variant (and newer variants) have been wreaking havoc, with new cases, hospitalizations, and fatalities increasing dramatically.

Rather than continue to wait for the private sector to mandate vaccinations, President Joe Biden announced yesterday that OSHA will soon be issuing an Emergency Temporary Standard that will apply to all private sector employers with 100 or more employees. These employers will have to require their employees to (1) get fully vaccinated, or (2) be tested for COVID every week. Employers will also be required to provide paid time off for employees to be vaccinated or to recuperate from side effects of the vaccines.

An Emergency Temporary Standard does not have to go through the lengthy, formal rulemaking process that applies to regulations. It can be issued after the Administration determines that “employees are exposed to a grave danger” from exposure to COVID-19 and that an ETS is “necessary” to protect them from such danger. In June, OSHA issued a similar ETS that applied to health care services employers.

The President’s announcement yesterday did not provide any details about when the ETS would be issued. The health care ETS was supposed to have been issued by March 15, but it was not actually issued until almost two months later. Although media reports have consistently said that penalties for failure to comply with the ETS would be up to $14,000, the present statutory maximum penalty amount is $13,653.

Although the intent of the President’s announcement is clear, the details are not yet known. For example, we assume that the 100-employee threshold would apply organization-wide as opposed to specific worksites, but that has not been made clear. Although the announcement says that employees must be given paid time off to get the vaccinations, nothing has yet been said about those who continue to decline vaccination and must be tested once a week. Among other things, the announcement does not address who pays for the testing, whether employees are paid for the time that they are being tested, or whether time off should be given for the testing even if unpaid. If OSHA is trying to incentivize people to get vaccinated, it would seem to make sense for the unvaccinated employees to be responsible for the logistics and expense related to the weekly testing. Finally, the announcement does not address whether a “violation” for purposes of the $14,000 penalty means the failure to ensure that all employees are either vaccinated or tested, or that each failure would be a “violation” on a per-employee basis.

Federal contractors: Mandatory vaccines, and a lot of questions

In addition to the OSHA announcement, the President issued an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, which will require certain federal contractors to mandate COVID vaccines. In a sweeping COVID-19 Action Plan, the President announced that all contractors – not just those performing work on federal sites – will have to mandate employee vaccinations. (A July 29 announcement applied only to contract workers on federal property and allowed for masking and frequent testing in lieu of vaccination.)

Similar to the President’s order to increase the minimum wage for federal contractors, the vaccine Executive Order applies only to a subset of contractors. The vaccine mandate will apply to the following types of new contracts:

  • Procurement contracts, or contract-like instruments for services, construction, or a leasehold interest in real property.
  • Contracts or contract-like instruments for services covered by the Service Contract Act.
  • Contracts or contract-like instruments for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b).
  • Contracts or contract-like instruments entered into with the Federal Government in connection with Federal property or lands, and related to offering services for Federal employees, their dependents, or the general public.

Contracts for the provision of products or supplies are not covered by the Executive Order, nor are employees who perform work outside of the United States.

Significantly, the Executive Order itself does not detail exactly what will be expected of covered contractors. It directs the Safer Federal Workforce Task Force to issue guidance by September 24 that explains the “safeguards to decrease the spread of COVID-19” and “protocols required of contractors and subcontractors. . . .” Compliance with this guidance will then be required by way of a new clause in contracts that are entered into, extended, or renewed on or after October 15. Covered contractors will need to include the contract clause in lower-tier subcontracts. Based on the President’s statement, the guidance is expected to mandate vaccinations of employees working on or in connection with covered contracts and subcontracts, but it could potentially include exceptions or alternatives.

The Executive Order does not address exceptions for employees who are not vaccinated because of disabilities or religious objections. Guidance issued earlier this summer by the Equal Employment Opportunity Commission says that employers must attempt to make reasonable accommodations for employees who are not vaccinated for these reasons. However, requiring weekly testing for on-site employees could arguably be a reasonable accommodation.

Nor does the Executive Order address compliance for contractors in states that ban mandatory vaccination policies. The Executive Order also does not explain how the contract clause will be enforced or what the penalties for non-compliance will be. Presumably, the guidance or contract clause will contain more specifics.

Although the Executive Order is effective immediately, it applies only to covered contracts that are entered into, extended, or renewed on or after October 15, 2021. The Executive Order, however, “strongly encourages” federal agencies to incorporate the new contract clause, where lawful, into solicitations that occur before that date.

These are obviously very significant developments for employers and federal contractors, and we will keep you up to date as we learn the specifics.

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