As the OSHA COVID-19 Vaccination and Testing emergency temporary standard (“ETS”) works its way through the courts in pending legal challenges, employers are still scrambling to position themselves in the event the ETS goes back into effect. (Review our Employer Defense Report and OSHA Defense Report for full background on the ETS and the most recent updates on its current status.) A key issue to consider is the cost of testing.
Should the ETS go back into effect, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees (known as a “hard mandate”) or (2) a combination of a COVID-19 vaccination requirement and weekly testing, plus face covering requirement, for those employees who choose not to get vaccinated (known as a “soft mandate”). Under this soft-vaccine mandate, an employee may only report to the workplace after demonstrating either: proof of being fully vaccinated; or for employees who do not get vaccinated or decline to share their vaccination status, proof of a negative COVID-19 test result from within the last week. Employees who are not fully vaccinated must also wear face coverings when indoors and when occupying a vehicle with another person for work purposes.
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.
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 →
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 →
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.
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.
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 →
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;
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.
Last Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.
We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage. To that end, Conn Maciel Carey LLP is organizing a coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.
For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall. First, Continue reading →
On Sept. 9th, 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 is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.
The President’s announcement was lean on details, and prompted as many questions as it answered. The attorneys from CMC’s OSHA and Employment Law practices discussed our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading →
On Sept. 9th, Pres. 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 is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.
The President’s announcement was lean on details, and prompted as many questions as it answered. Join the attorneys from CMC’s OSHA and Employment Law practices to talk through our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading →
Yesterday, September 9th, President Biden issued new Executive Orders requiring federal contractors and healthcare employers to implement “hard” vaccine mandates, and directed federal OSHA to issue a new Emergency Temporary Standard that would require many employers to provide paid time for employees to get vaccinated and recover from the vaccine, and to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly COVID-19 testing.
The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now. In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry. Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:
The rate of community transmission and COVID-19 deaths around the country has returned to the level we were experiencing in the Spring of this year when OSHA delivered to OMB a proposed ETS that was written to cover all industries. To the extent the decline in cases and deaths was a major factor in OSHA’s decision to limit the ETS to just healthcare, that factor no longer cuts in favor of a healthcare-only rule.
Since issuing the ETS for healthcare, OSHA has been under pressure from national unions and worker advocacy groups to expand the ETS to all industries, both in the form of written comments during the ETS’s post-issuance comment period and a lawsuit filed by AFL-CIO challenging OSHA’s decision to limit the ETS to just healthcare.
There has been a growing tension between the Biden Administration and certain Republican governors, particular DeSantis in Florida and Abbott in Texas, around mask and vaccine mandates. The Biden Administration could resolve that tension by issuing a specific federal OSHA regulation setting requirements for masking and vaccinations, which would likely preempt conflicting state laws.
The White House has changed its tune about strict COVID-19 protocols and vaccine mandates dramatically since the OSHA ETS was issued. The Administration’s decision to limit the ETS to healthcare only was likely at least partially politically-motivated; i.e., a broad ETS was too unpopular due to the massive decline in COVID-19 cases and deaths. However, we have started to see President Biden take politically risky moves around vaccinations; e.g., reinstituting mask recommendations for vaccinated individuals and setting a “soft” mandate for federal workers and contractors and encouraging industry to set similar mandates. If the politics of aggressive COVID-19 requirements influenced OSHA’s decision to issue a narrow rule in June, it appears the Administration has changed its political calculation in the face of the spread of the Delta variant surge.
Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries. But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front. A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.