Breaking News: Vaccination Deadline Pushed to January 4; OSHA ETS will Not Apply to Workplaces Covered by Federal Contractor Vaccination Requirement

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

On November 4, 2021, the White House issued a statement regarding several vaccination-related policies. Though the main focus of the announcement was two new rules (referenced below) not specific to Federal contracting, there were some important impacts for Federal government contractors, as well. As of the time of writing, the official Safer Federal Workforce Task Force’s COVID-19 Safety Protocols guidance website has not yet been updated to reflect these changes, but you should nonetheless be aware.

For more background information on this developing story, check out our previous coverage on the COVID-19 Safety Protocols guidance, and some of the most important (as of November 3) updates to that guidance.

Yesterday’s statement was primarily focused on the much-anticipated Department of Labor’s Occupational Safety and Health Administration (“OSHA”) rule, COVID-19 Vaccination and Testing Emergency Temporary Standards (“ETS”). The ETS requires nearly all private employers with 100+ employees to ensure each of their workers is fully vaccinated, or test for COVID-19 on at least a weekly basis. In addition, the statement informed readers that the Centers for Medicare & Medicaid Services (“CMS”) at the Department of Health and Human Services was announcing the details of its own requirement that health care workers at facilities participating in Medicare and Medicaid be fully vaccinated. 

The OSHA and CMS rules are separate and apart from the requirements that covered Federal contractors must now comply with.  As contemplated by Biden’s September 9 Executive Order, Covered Federal contractors must comply with the Task Force’s COVID-19 Safety Protocols guidance, because of the incorporation, into their contracts, of the COVID deviation clauses. (These clauses require contractors to be compliant with the guidance.) The guidance itself mandates that contractors fulfill certain requirements relating to employee vaccine mandates, masking/distancing (and relating monitoring and signage), and designation of a COVID coordinator. Covered contractors must also flow down the COVID deviation clauses to subcontractors. (A more detailed explanation of the various requirements set forth in the guidance can be found in our previous coverage, linked above).

But, as regards Federal contractors, the most important part of yesterday’s statement is the fact that, in an effort to make things consistent, the government has pushed the vaccination deadline for covered Federal contractors’ employees from December 8 to January 4. The statement explained:

“The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS.  To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.”

The other important item in yesterday’s statement concerns the interplay/overlap of the OSHA ETS and the Federal contractor guidance. The statement advised that:

“OSHA is also clarifying that it will not apply its new rule to workplaces covered by … the federal contractor vaccination requirement.” 

This means that the ETS will not apply to contractor workplaces that are subject to the Executive Order and related guidance. But, workplaces not (or not yet) subject to the Executive Order and guidance will be covered by the ETS. 

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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