– Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
Once published in the Federal Register, the requirements outlined in the ETS are automatically implemented and open for public comment. Under the OSHA statute, the ETS will remain in place for six months. OSHA can then replace it with a permanent standard reflecting any received comments during the comment period or discontinue the standard. OSHA already issued an ETS in June of this year, covering workplaces in the health care industry and requiring certain practices to protect employees from COVID-19 exposure. That ETS is set to expire in late December.
Questions remain over how the requirement will be enforced, considering the expected legal challenges and other details. Employers and employees are still questioning how much time they will be allotted to prepare for implementation of the requirements.
As an ETS can be extended through a permanent standard, it also remains unclear as to how long businesses will be required to maintain full compliance.
The Michigan Chamber of Commerce has launched a coalition to urge President Biden and the Occupational Safety and Health Administration (OSHA) to reconsider their pending federal sweeping vaccine mandate. Visit www.ListenToMIBusiness.com to learn more.
– Requiring Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government
As part of the Biden administration’s “Path Out of the Pandemic” plan, President Biden signed an Executive Order requiring nearly all federal contractors to be vaccinated against COVID-19. This Executive Order takes those actions a step further and requires all federal executive branch workers to be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government.
From the Michigan Chamber of Commerce:
The Safer Federal Workforce Task Force released a 14-page guidance and FAQ document for federal contracts and subcontractors on September 24th. The guidance specifies the Executive Order applies to covered contractors and subcontractors, regardless of whether they are a small business. It specifies covered employees “must be fully vaccinated no later than December 8, 2021” unless the covered contractor is legally required to provide accommodation for a disability or sincerely held religious belief or practice. Contractors must also follow the CDC’s guidance for mask-wearing and social distancing for covered contractor employees and visitors.
For employees working remotely, the FAQ document specifies an “individual working on a covered contract from their residence is a covered contractor employee and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract. A covered contractor employee’s residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract.” The guidance also makes it clear that the mandate applies regardless of whether the contractor’s work is performed indoors or outdoors.
In terms of requiring onsite vaccine offerings, the FAQ document makes it clear that covered contractors are not required to do so and are only required to “ensure their employees are aware of convenient opportunities to be vaccinated.” In terms of antibody tests as an alternative to vaccination, the FAQ makes it clear that a contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.
The Executive Order provides a phased-in approach. For contracts awarded prior to October 15, 2021, the vaccination clause must be incorporated at the point at which an option is exercised or an extension is made. For contracts awarded on or after November 14, 2021, the clause must be included. For contracts awarded between October 15, 2021 and November 14, 2021, the clause must be included in the solicitation and agencies are encouraged to include the clause in contracts awarded during this time period, but are not required to do so unless the solicitation for such contract was issued on or after October 15, 2021.
Given the complexity of the Executive Order and the guidance document, employers believing they need to comply with the Executive Order should seek the advice of legal counsel.