Yesterday, the White House announced numerous new measures to combat the pandemic and the contagious Delta variant that impact employers. One key change is a new regulation to be issued by the Occupational Safety and Health Administration (OSHA), which is part of the U.S. Department of Labor (DOL), that will require companies with 100 or more employees to ensure their workforces are either fully vaccinated or test negative for COVID-19 at least once a week. President Biden also announced two new Executive Orders creating vaccine mandates for federal employees and employees of federal government contractors.
Vaccination/Testing Mandate for Employers With 100 or More Employees
OSHA is developing an emergency temporary standard under which employers with 100 or more employees must 1) require that their employees are fully vaccinated from COVID-19 or test weekly for the virus, and 2) provide paid time off for workers to get the vaccine and recover from any side effects.
OSHA will have the ability to fine non-compliant businesses up to $14,000 per violation.
Additional details are forthcoming, and will presumably be addressed in the new standard, including provisions about timing, cost, and employer obligations or options with respect to employee non-compliance.
The emergency temporary standard will undergo an expedited review process before taking effect and will not involve public comment. The White House anticipates its release in the coming weeks and an effective date shortly thereafter.
Currently, the only vaccination requirement for employers is an OSHA rule mandating that employers whose workers could be exposed to Hepatitis B offer free vaccination to employees; workers who elect not to receive the vaccine are required to sign an acknowledgement.
Vaccination Mandate for Federal Government Employees and Federal Contractors
President Biden also signed two Executive Orders establishing vaccine mandates for both federal employees and federal contractors.
- Federal employees.
The first order, “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” directs all federal agencies to implement a program to require COVID-19 vaccinations for all federal employees, with exceptions only as required by law. The Executive Order does not specify which “exceptions as required by law” must be honored, but directs the Safer Federal Workforce Task Force (Task Force) to issue guidance within seven days to aid agencies in developing their plans, and more information will likely come with that guidance. Exceptions are likely to include individuals who cannot be vaccinated by reason of disability or sincerely held religious belief, as laid out in previous EEOC guidance.
The Executive Order is effective immediately, with guidance on implementation from the Task Force to come within seven days.
- Federal contractors.
The second order, “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” requires all new federal contracts and “contract-like instruments” (as well as solicitations for federal contracts, extensions and renewals of federal contracts, and the exercise of options in existing federal contracts) to include a clause reflecting that the contractor and any subcontractors will comply with all applicable guidance for their workplace published by the Safer Federal Workforce Task Force (“Task Force Guidance”). The Task Force is ordered to produce such guidance by September 24 setting forth relevant workplace protocols for federal contractors. It is expected to apply to all workplace locations in which an individual is working on, or in connection with, a federal government contract.
The clause will begin appearing in covered contracts starting on October 15, 2021. There are certain exceptions under the Order, including for certain Indian tribes, contracts below the threshold for government bidding procedures as defined by federal regulation (generally, $250,000), employees who work outside the United States or outlying areas, and subcontracts solely for the provision of products.
While the Order itself does not mandate vaccinations for employees of federal contractors, it is likely that the forthcoming Task Force Guidance to be produced by September 24 will include such a requirement. On September 9, President Biden said, “I’ve signed another executive order that will require federal contractors to [be vaccinated]. If you want to work with the federal government and do business with us, get vaccinated. If you want to do business with the federal government, vaccinate your workforce.”
Currently, under a July 29 guidance produced by the Safer Federal Workforce Task Force, federal employees and onsite federal contractors are required to show proof of vaccination or follow worksite protocols including weekly testing, mask wearing, social distancing, and limitations on travel. While these restrictions are limited to federal employees and contractors working on site at federal property, it appears that the vaccine mandate will expand to include any contractor performing work for the federal government, regardless of if that work is on site.
The White House estimates these changes will impact approximately 100 million Americans.
Schiff Hardin will continue to monitor these developments and other employment issues related to the COVID-19 pandemic.