Update on Challenges to Federal Contractor Mandate

By Fern Fleischer-Daves

While we remain focused on the legal challenges now consolidated at the Sixth Circuit Court of Appeals, quite a lot has been going on with regard to the Federal Contractor Mandate which is facing its own set of challenges.

Did you recently receive a request to amend an existing federal contract? 

If so, you are not alone!  Over the past few weeks, federal administrative agencies have been busy sending emails to tens of thousands of federal contractors seeking to amend existing federal contracts by implementing a COVID-19 vaccination mandate pursuant to guidance issued by the Safer Federal Workforce Taskforce.  These efforts are now being tracked through a new online interactive dashboard reflecting whether or not the 17,000+ contracts currently administered by GSA have been amended.  The contracts in this publicly accessible database are classified as  “Accepted”, “Closed/Cancelled”, or “Pending.”  Meanwhile, federal agency contracting officers are being strongly encouraged to check this database before placing new orders.

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Needless to say, there are potentially serious consequences for a current federal contractor who fails to respond or declines to accept the vaccination mandate.  GSA has warned that company names flagged as “Closed/Cancelled” in this database may be removed or hidden in other federal contracting tools which will make it difficult if not impossible to get any new orders on existing contracts. Recent solicitations for new federal contracts have the clause implementing EO 14042 already included in the terms and conditions.

Employees of federal contractors challenge EO 14042

While several cases have been filed to challenge the President’s authority to mandate vaccinations for federal employees and/or contractors, so far, none have secured a stay of EO 14042.

In Altschuld v. Raimondo, employees of more than a dozen different federal agencies and two unnamed government contractors are challenging both Executive Orders 14042 and 14043.  Last week, Judge Chutkan in the DC Circuit Court held that plaintiffs failed to show irreparable harm, since they had all requested religious exemptions from the vaccination mandate, so they are not entitled to a preliminary injunction.  Explaining further, the Court noted that:   Continue reading

[Webinar] Avoiding Common Pitfalls of Company Trade Secret and Non-Compete/Non-Solicit Agreements

On Wednesday, November 17, 2021 at 1:00 p.m. ET, join Jordan B. Schwartz and Megan S. Shaked for a webinar regarding Common Pitfalls of Company Trade Secret and Non-Compete/Non-Solicit Agreements.

Employment agreements and settlement agreements can be an effective way to address employer concerns regarding unfair competition and trade secret protections. Equally important is avoiding the pitfalls of non-compliant provisions. This webinar will review the scope of permissible provisions relating to non-compete and other restrictive covenants, state law efforts to push back on overly broad and restrictive agreements, and best practices for avoiding potential employment claims.

Participants in this webinar will learn: Continue reading

OSHA’s COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard [Webinar Recording]

On November 10, 2021, Eric ConnKate McMahon, and Lindsay DiSalvo presented a webinar regarding OSHA’s new COVID-19 vaccinate-or-test emergency rule.

In September, President Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan was a directive to federal OSHA to develop another COVID-19 Emergency Temporary Standard requiring many employers to implement a “soft” vaccine mandate; i.e., to require employees to either be fully vaccinated or submit to a weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time off for employees to get vaccinated and recover from any side effects of the vaccine.

OSHA moved quickly in response to the President’s directive, and published the final ETS in the Federal Register on November 5, 2021. During this webinar, the attorneys from CMC’s OSHA and Employment Law practices provided a detailed analysis of the rule and addressed these important questions raised by the latest development on the COVID-19 front: Continue reading

Employment Law Implications of the OSHA ETS: Paid Time Off for Vaccination

A,Doctor,In,A,Clinic,Giving,A,Coronavirus,Vaccine,ToOn November 5, 2021, OSHA published its latest Emergency Temporary Standard (“Test-or-Vaccinate ETS”) to address the effects of COVID-19 in the workplace – “COVID-19 Vaccination, Testing, and Face Coverings.”  Under the Test-or-Vaccinate ETS, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees or (2) a combination of a COVID-19 vaccination requirement and weekly testing for those employees who choose not to get vaccinated.  Per OSHA’s stated intent to strongly encourage vaccination through the Test-or-Vaccinate ETS, the rule specifically requires employers to provide paid time off for vaccination AND to recover from vaccine-related side effects.  In the Preamble to the Test-or-Vaccinate ETS, OSHA asserts that these requirements ensure unvaccinated employees can be vaccinated without having to sacrifice pay or their jobs.

Below we review the two different types of leave, including their individual nuances, that are required by the Test-or-Vaccinate ETS.

Paid Leave for Vaccination

Under 29 C.F.R. 1910.501(f)(1), employers must provide reasonable time – up to 4 hours per dose – to each employee to receive their primary vaccine dose or doses during work hours.  This includes time spent:

  • Making the appointment and completing related paperwork;
  • Waiting to get and actually getting vaccinated, as well as post-vaccination monitoring; and
  • Traveling to and from the vaccination site as necessary. 

OSHA guidance does clarify that an employer is not required to reimburse an employee for transportation costs incurred to receive the vaccine, just for the actual time to receive each vaccine dose.  Even where an employer facilitates a vaccination event on site, it must provide reasonable paid time to employees to receive each primary vaccination dose, though the time may be more limited as it takes out travel and making the appointment.  Notably, if an employee chooses to receive a primary vaccination dose outside of work hours, the employer would not be required to grant paid time to that employee for that dose.  However, because of the paid leave scheme, it does seem less likely that an employee would make the choice to go outside of their work hours. 

Time must be paid at the employee’s regular rate of pay and only applies to the primary vaccination doses; i.e., time required to receive a booster shot is not required to be paid under the Test-or-Vaccinate ETS.

Importantly, this paid time cannot be offset by other forms of leave, such as sick leave or vacation leave.  As a justification for prohibiting the use of other paid leave for this purpose, OSHA explains that it created this new bucket of required paid time because it believes employees could be discouraged from getting vaccinated if they have to dip into their accrued sick leave or general PTO to get vaccinated. Continue reading

OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET.Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

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New EEOC Guidance on Religious Exemptions / Accommodations

By Conn Maciel Carey LLP’s COVID-19 Task Force

Earlier this week, the EEOC finally updated its guidance on Title VII and Religious Objections to COVID-19 Vaccine Mandates, which will impact how employers will implement their various vaccination, testing, and masking requirements.

US law has long-recognized an exemption from mandatory work policies (including vaccine-mandates) based on sincerely held religious beliefs, pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state statutes). For employers, evaluating religious exemption requests can be tricky (certainly trickier than requests for medical/disability-based exemptions), as there is often no readily verifiable evidence to help ascertain whether an employee’s religious objection to the work policy is a sincerely held religious belief (or even a religious belief at all). Indeed, although it is permissible to attempt to obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee’s belief system, and employee is not required to provide such a statement, as they may not be affiliated with an organized religion. Furthermore, as an end-around to COVID-19 vaccine-mandates, many employees nationwide are attempting to seek a religious exemption when their actual objections are really based in political, ethical, or personal beliefs.

In response to requests from the regulated community, the EEOC has attempted to provide more clarity so that employers can have more confidence in implementing their accommodations process, and in many instances, to push back on suspect claims by employees of the need for a religious exemption. The guidance does offer some useful tools for employers, but unfortunately, it is not as helpful as we had hoped it might be.

The theme of the EEOC’s updated guidance is that employers must make an individualized evaluation of each employee’s request for a religious accommodation. The EEOC renewed Continue reading

New York HERO Act: COVID-19 Designation as Highly Contagious Communicable Disease Extended Until October 31, 2021

As we previously reported, on September 6, 2021, the New York State Commissioner of Health issued a designation determining COVID-19 to be “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.”  Such designation triggered requirements on employers to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (“HERO Act”).

The New York State Department of Labor (“NYDOL”) issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace.  As explained in our prior blog post, those requirements include:

  • employee health screenings;
  • employee face coverings;
  • personal protective equipment;
  • workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
  • cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
  • social distancing;
  • complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
  • air flow, exhaust ventilation, or other special engineering design requirements;
  • designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
  • notice to employees; and
  • verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.

Employers were required to adopt a model plan Continue reading

California Adds Increased Meal/Rest Period and Workplace Safety Protections for Warehouse Employees Subject to Production Quotas

On September 22, 2021, California became even more labor friendly when Governor Newsom signed AB 701 which adds additional requirements to California’s existing meal and rest breaks rules for non-exempt warehouse employees. Effective January 1, 2022, employers covered by AB 701 must disclose all quotas to warehouse employees that the employee may be subject to.  Employers are subject to a rebuttable presumption of retaliation against employees who are subject to an adverse employment action within 90 days of engaging in protected activity under AB 701.  Employers must make the disclosure to each employee upon hire or within 30 days of the law going into effect.

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Employee Handbooks, Training, and Internal Audits [Webinar Recording]

On September 21, 2021, Aaron R. Gelb and Beeta B. Lashkari presented a webinar regarding Employee Handbooks, Training, and Internal Audits.

While few, if any, employers had time to develop state-of-the-art policies or revamp their training programs in 2020 for matters unrelated to COVID-19, they would be wise to consider taking proactive steps as the world returns to some semblance of normalcy. As employees begin to focus on more mundane matters, they would do well to remember that a well-drafted, up-to-date employee handbook tailored to your organization is an essential element of your compliance program. Effective and engaging training is necessary to communicate your policies and priorities to your employees, and to ensure your managers understand their roles and what is expected of them. A state-of-the-art handbook and top-shelf training will be of little value, however, if your employees and/or managers are not following those policies, it is critical that you conduct compliance audits to ensure your organization is walking the talk.

Participants in this webinar learned: Continue reading

Battle Over Employment Arbitration Agreements In California Continues

By Megan Shaked

The seemingly never ending battle over employment arbitration agreements in California continues with last week’s Ninth Circuit court decision vacating a preliminary injunction over 2019’s California Assembly Bill 51 (previously discussed here and here).

Back in 2019, California Governor Gavin Newsom signed Assembly Bill 51, which added section 432.6 to the California Labor Code and sought to ban new mandatory arbitration agreements to the extent they cover any discrimination claims under the California Fair Employment and Housing Act (FEHA), or any claims under the California Labor Code.  Under this legislation, an applicant or employee could not, as a condition of employment, continued employment or the receipt of any employment-related benefit, be required to waive any right, forum, or procedure under the FEHA or any other specific statute governing employment.  Employers would also be prohibited from threatening, terminating or otherwise retaliating or discriminating against an applicant or employee because of the refusal to consent to a waiver.  Violations of these provisions would constitute unlawful employment practices under the FEHA and would be a misdemeanor.

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