On September 9, 2021, President Biden announced his COVID-19 Action Plan, requiring federal employees and potentially private sector workers to be vaccinated against COVID-19. Employers will carry the burden of the rules related to vaccinating the unvaccinated, as Biden has put out a call for agencies to start mandating vaccinations.
Private Employers with 100+ Employees Must Ensure Employees are Vaccinated or Tested
Perhaps the biggest surprise of Biden’s COVID-19 Action Plan, Biden directed the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop a rule requiring all employers with 100 or more employees to ensure their workforce is either fully vaccinated or provides a negative test at least weekly. It is important to note that, at this time, this rule has yet to be enacted and it is unclear exactly when a rule will issue. Unlike the following two sections, this concept was only touted in Biden’s Action Plan and was not part of an Executive Order or any other type of authoritative document. Regardless, Biden suggested that OSHA issue an Emergency Temporary Standard (“ETS”) to implement such a rule. While there are no obligations for employers with 100+ employees to comply with today, employers should prepare for this rule to be enacted in fairly short order. Biden’s Action Plan calls for violations of this rule to carry a $14,000 penalty per violation, which could lead to some rather large penalty sums if OSHA determines a company had multiple violations (each violation stacks).
Additionally, Biden directed OSHA to ensure that employers subject to this rule provide paid time off for the time it takes employees to get vaccinated under this rule. This would also require employers to provide paid time off if employees are sick as a result of being vaccinated.
This measure will be met with a variety of legal challenges, which several Republican governors and legislators have already threatened to do. There is a very real possibility that such a rule could be enjoined by the federal courts, so there will be more to report on this in the future.
Federal Contractor COVID-19 Guidance
On September 9, 2021, President Biden issued an Executive Order related to COVID-19 safety protocols for federal contractors, which could require vaccination of all employees of contractors doing business with the federal government. The Order does not explicitly require federal contractors to get vaccinated, but he did suggest that would be the case in his COVID-19 Action Plan. However, what it does require is for federal contractors to comply with upcoming COVID-19 guidance published by the Safer Federal Workforce Task Force. Biden directed the Safer Federal Workforce Task Force to provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required by contractors and subcontractors to comply with the policy, and any exceptions to the policy by September 24, 2021. Executive departments and agencies must ensure that their contracts include a clause that requires contractors and subcontractors to comply with this guidance, and that they must also include their own similar clause into any lower-tier subcontracts. Biden expects the contracting agencies to start including the clause by October 15, 2021.
Importantly, the Order directly explains what kinds of contracts the guidance will apply to, including: procurement contracts for services, construction, or a leasehold interest in real property; contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.; contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and contracts entered into with the Federal Government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.
On the other hand, the Order specifically does not apply to: grants; contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended; contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation; employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or subcontracts solely for the provision of products.
Contractors doing work with the federal government will want to keep an eye out for the guidance on September 24, 2021, and will want to mark their calendars for October 15, 2021, which is when you can start expecting these clauses to show up in federal contracts.
Vaccinating Federal Workers
Also on September 9, 2021, Biden simultaneously issued an Executive Order requiring all federal workers to be vaccinated against COVID-19. The Order requires each federal agency to implement a program requiring COVID-19 vaccination for all Federal employees. The Order includes limited exceptions for federal employees to not comply with their respective agency’s rule but does not define them, stating rather broadly that the agencies must require vaccination with “exceptions only as required by law.” Although the Order does not define what these exceptions would include, the EEOC has generally stated that employers must provide an exception for employees claiming their religious beliefs prohibit them from getting vaccinated (unless it would cause undue hardship on the business). Similarly, some employees may be exempt from this requirement if they have a disability as defined by the ADA.
If you have questions regarding the above or any other employment-related concerns, please contact Michael S. Kernstock at firstname.lastname@example.org, or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.