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It's time to prepare for workplace vaccine mandates


Hard mandate for federal employees, contractors, and healthcare facilities

In perhaps the most far-reaching government move during the pandemic, on September 9, President Biden issued new Executive Orders requiring federal contractors and healthcare employers to implement "hard" vaccine mandates and tasking federal OSHA with developing a second Emergency Temporary Standard (ETS) related to COVID-19 and a "soft" vaccine mandate for private employers. The "hard" vaccine mandate applies to federal employees in the executive branch and contractors that work with the government, workers in healthcare facilities that receive federal Medicaid or Medicare funding, and staff at Head Start programs run by the federal government. It does not apply to members of Congress or their staff or the judicial branch.

The deadline to get the vaccine for federal employees who are required to do so is November 22, 2021. Employees of covered federal contractors must be vaccinated by December 8, 2021, unless they are granted an exemption, according to guidance released Sept. 24. This is a hard mandate, so employees and contractors do not have the option of undergoing regular testing instead of vaccination. However, employees can request exemptions for a disability, including medical conditions, or because of a sincerely held religious belief, practice, or observance and contractors must have a system in place to consider and determine whether to grant an exemption to employees.

The guidance applies to "subcontractors at all tiers, except for subcontracts solely for the provision of products." Prime contractors must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products.

The vaccination requirement will apply to employees of federal contractors who do not work on or in connection with a federal contract but perform only commercial work. A "covered employee," for purposes of the mandate, includes any full-time or part-time employee who works at a location at which an employee working on or in connection with a contract "is likely to be present." All covered contractor employees, including those who previously had COVID-19 and including those who work outside or work remotely (even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract) must be fully vaccinated for COVID-19 unless the employee is legally entitled to an accommodation.

It supersedes any contrary state or local laws. Covered contractor employees must also comply with agency COVID-19 workplace safety requirements while in federal workplaces, which include physical distancing and masking.

However, it does not apply to those who work outside the United States or contracts or agreements with Indian Tribes. While the guidance does not apply to contracts or subcontracts below the simplified acquisition threshold (currently $250,000) or federal agreements or solicitations issued, or for which options to extend are exercised before October 15, the guidance strongly encourages agencies to include a clause requiring compliance into contracts that are not covered or directly addressed by the order.

According to the guidance, contractors must designate someone to coordinate the implementation of and compliance with the mandate. Covered contractors are required to review vaccine documentation from employees working on federal contracts to prove vaccination status. The guidance identifies acceptable forms of documentation and notes, "An attestation of vaccination by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccination." There are also definitions for key terms and a helpful "frequently asked questions" section.

Also, as part of the White House's action plan, the Centers for Medicare and Medicaid Services (CMS) will expand the emergency regulations requiring vaccinations for nursing home workers to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid program. The CMS action will also cover staff not involved in patient, resident, or client care.

Legal challenges have already begun. The Arizona Attorney General filed a complaint against the Biden administration over this mandate on Sept.14.

How employers and contractors can prepare

Soft vaccine mandate for private employers

While the requirements relating to the private sector are less clear as the ETS and guidance have yet to be released, this is what we do know. The Executive Order directs federal OSHA to issue a new ETS that would require employers with 100 or more employers to provide paid time for employees to get vaccinated and recover from the vaccine, and to implement "soft" vaccine mandates. This means covered employers must mandate that their employees either be fully vaccinated or get weekly COVID-19 testing. It is expected that exemptions will be limited to those allowed under existing law - disability and religious exemptions.

One of the many unanswered questions is how the 100-employee threshold will be determined. Many OSHA pundits believe it will be the total number of workers employed company-wide rather than on a per-location basis. This is consistent with some standards that mandate certain requirements based on employer size and with the announced anticipated coverage of more than 80 million workers. It's unknown if it will apply to remote workers, although many believe it will not if the employee never comes into the workplace.

It's also unknown what documentation employers will have to collect to prove the vaccination status of their employees. The labor and employment law firm, Conn Maciel Carey LLP speculates that the requirements may follow those for the COVID-19 ETS for Healthcare, which are fairly "loose." While OSHA's record retention regulations require that employers preserve and maintain employee medical records for the duration of employment plus 30 years, a specific regulation can set a different retention requirement. Another open question is how the ETS will affect state and local laws that prohibit discrimination based on vaccination status.

Unlike the mandate for federal workers and contractors, the standard will allow employers to offer regular weekly COVID-19 testing procedures for those employees who decline to be vaccinated. However, private employers can avoid the administrative burdens of large-scale weekly testing by rolling out a "strict" vaccine mandate (without a testing option) when allowed by state law and subject to accommodation requirements.

Another unanswered question is who will pay for the tests and what records must be maintained? Employers are required to pay employees for time off to get vaccinated and to recover from any ill effects of the vaccine; however, it's unclear whether there are limits to the amount of time and if employers, employees, or insurance must pay for the actual tests. It's expected that this, as well as the type of test required, will be addressed in the final ETS.

While it is expected that the ETS will be narrowly focused on vaccinations, nothing is prohibiting OSHA from widening the scope, and according to a recent Time article, the veteran staff would prefer a broader ETS. There is, however, a push to get this done quickly.

Once issued, the ETS will take effect immediately in the 29 states where federal OSHA has jurisdiction, but it is anticipated that a reasonable time will be set for employees to be vaccinated. According to OSHA's policies on emergency standards, "State Plans are required to have an ETS that is at least as effective as an ETS issued by federal OSHA 30 days following publication." Most of the state plan states did adopt the Healthcare ETS almost verbatim and it is expected the same will occur with this ETS. The ETS can remain in place for six months. After that time, it must be replaced by a permanent OSHA standard, which must undergo a formal rulemaking process involving a typical notice-and-comment period.

It's anticipated OSHA will have the ability to fine non-complying businesses as it does for any other regulatory violation - $13,653 per Serious or Other-than-Serious violation and up to $136,532 per violation for repeat offenders. Legal challenges are already beginning, which could potentially delay the implementation.

How employers can prepare