Client Alert: Vaccination Mandates

Biden’s Executive Order 14042 and Federal Contractors:

On September 24, the Safer Federal Workforce Task Force published guidance on COVID-19 workplace safety for federal contractors and subcontractors. The guidance was published under the direction of President Biden’s Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” This Executive Order instructs federal agencies to require contractors and subcontractors to comply with certain COVID-19 workplace safety protocols.

Definitions of covered entities are as follows:

• A covered contractor is any prime or subcontractor who is involved in a contract or contract-like instrument as defined in section 5(a) of Executive Order 14042.
  • Subcontractors are businesses and organizations that perform work for a Federal contractor that is related to and necessary for the performance of a Federal contract
• A covered contractor employee is a full- or part-time employee of a covered contractor who is working on or in connection to a covered contract or at a covered contractor workplace, including employees who are not working in relation to a covered contract.
• A covered contractor workplace is any worksite where an employee working on or in connection to a covered contract is expected to be present during the duration of the covered contract. An employee’s private residence is not considered to be a covered contractor workplace.

The covered entities under the guidance must adhere to the following:

• All covered contractor employees must be fully vaccinated;
• All individuals, including covered contractor employees, visitors and others, must comply with Centers for Disease Control and Prevention (CDC) guidance for masking and physical distancing; and
• Covered contractors are required to appoint an individual to manage implementation of this guidance at covered contractor workplaces.

Deadline for Covered Contractors to Receive Vaccine:

On November 4^th, the White House announced that the deadline for employers covered by the federal contractor vaccine requirement to comply with the vaccine mandate will be extended from December 8, 2021 to January 4, 2022.

January 4, 2022 is the last day to get your final dose of the vaccine. This extension allows federal contractors more time to achieve compliance if they have been struggling to meet the original December 8 deadline. And, it assists contractors that would like to proceed slowly to see what happens to the pending legal challenges to the implementation of the federal contractor mandates. However, this does not extend the time frame to comply with other obligations under the mandate which includes identifying non-vaccinated employees; attempting to obtain voluntary compliance through education and, incentives; determining the corrective action process to be used for covered employees that remain unwilling to comply; and developing contingency plans for dealing with the possibility of losing critical employees.

OSHA Emergency Temporary Standard:

Recently, OSHA released its anticipated Emergency Temporary Standard (“ETS”), requiring “large” employers to implement COVID-19 vaccine mandates or otherwise subject unvaccinated employees to weekly testing. This is based upon the finding that COVID-19 poses a grave danger to the workplace given evidence that unvaccinated individuals are more likely to contract, transmit, and suffer severe health outcomes from COVID-19. The ETS was effective as of November 5, 2021. On November 6, 2021, the Fifth Circuit Court of Appeals temporarily stayed ETS. On November 12, 2021, following additional briefing, the Fifth Circuit continued its preliminary stay, finding that the “petitioners’ challenges to the Mandate are likely to succeed on the merits” for “a multitude of reasons,” including statutory and constitutional bases. At this point, OSHA is ordered to “take no steps to implement or enforce the Mandate until further court order.”

• MIOSHA was expected to issue a state plan that is “at least as effective as the ETS” within the next 30 days; however, it is unclear what the timeline is based on the Fifth Circuit’s stay and additional litigation that has been filed.

Employers & Employees Covered:

• The ETS applies to most employers with 100 or more employees. An employer is considered to meet the 100-employee threshold if, at any time during the effective period of the ETS, the employer has 100 or more employees, taking into consideration “all employees at all locations.”  Notably, federal agencies, federal contractors covered by Executive Order 14042, and healthcare employers covered by the OSHA Healthcare ETS, need not comply. The proposed OSHA rules do not apply to workplaces covered under the Safer Federal Workforce Task ForceCOVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors issued September 24, 2021.

Requirements:

• Covered employers must mandate vaccination or establish a weekly testing protocol for all employees who choose to remain unvaccinated.
• Employers have 60 days to establish their testing protocols and 30 days to satisfy all other ETS requirements.

Vaccination Status and Covid-19 Testing Protocol:

• Employers “must determine the vaccination status of each employee” and properly store each employee’s “acceptable proof of vaccination status.”
• Covered employees must be tested and submit documentation of a negative test result at least once every seven days.

Impact of Incentives to Encourage Employees to get Vaccinated:

Employers are incentivizing employees to get vaccinated to meet the required compliance. Incentive examples range from offering additional time off or giving employees a cash stipend. This is really a business decision to be made as there are obvious pros and cons to offering incentives.

Approach to Vaccine Mandate as a Company:

The below information is compiled from different company sites/recent publications. Kaltz Coulombe is not advising or promoting these methods, but rather reporting on how companies are approaching education.

To educate, employers should consider partnering with experts in the medical and vaccine research fields to answer employee questions regarding the vaccine, including how it was developed and why it is considered safe and advisable. Successful employee education efforts maintain an open line of communication between employees and well-qualified individuals who can effectively answer any questions or concerns employees may have.

At the same time, employers should express and repeat, early and often, that employees are strongly encouraged to receive a vaccine as soon as possible. An employer’s clear stance on vaccinations is helpful for employees to understand as they make their own decisions. Lastly, vaccination campaigns are likely to be most successful among those employers who appropriately assist their employees by making it easy for them to receive the vaccine. Employers should consider partnering with a third-party administrator to make vaccines conveniently available to employees at work and free of charge; identifying vaccine administrators in the area; providing paid time off to get the vaccine and to recover from the effects of the vaccine; offering small incentives, i.e., small gift certificates/cash incentives, to those employees who complete their vaccination. These can be impactful to ensure that employees receive vaccinations, while allowing employers to mitigate for potential exposure considerations.

Main Differences between Federal Contractor Mandate and OSHA ETS:

The federal contractor mandate and OSHA ETS do not have the same requirements. Unlike the OSHA ETS, a testing option is not available to federal contractor employees (except in the case of medical or religious accommodations). Federal contractors must be vaccinated. Additionally, the OSHA ETS requires employers to provide employees with reasonable time to receive vaccine and recover from any side effects. Furthermore, the federal contractor mandate requires that all covered contractor employees comply with current CDC masking and physical distancing guidelines.

Although the OSHA requirements do not apply to workplaces covered by the federal contractor mandate, employers that have varying customers could find themselves covered by the federal contractor mandate and covered by the OSHA ETS. Likewise, there are different recordkeeping and notice requirements under each mandate. Simultaneous compliance with both sets of rules could be complex.

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We will be monitoring any updates that develop surrounding the vaccine mandate for federal contractors as well as updates surrounding OSHA’s ETS. If you have any questions regarding the vaccine mandate and how it relates to your business specifically, please don’t hesitate to reach out to Kaltz Coulombe.