Executive Orders and Vaccine Mandates

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Last week, there was a flurry of activity from the Biden Administration regarding vaccine mandates among federal employees, federal contractors, and large employers (100+ employees).

Not to be outdone, Virginia implemented new revisions to the Final Permanent Standard that took effect on September 8, 2021. Please read our companion article for more information about this change: “Recent Changes to Virginia’s Final Permanent Standard for COVID-19.”

This article will bring you up to speed on the current state of the federal regulations, but there is no one-size-fits-all compliance solution. Woods Rogers has been delivering tailored solutions based on employers’ needs, which is what these recent changes demand.

On September 9, 2021, the Biden Administration mandated vaccination against COVID-19 for all federal contractors and employees. Simultaneously, the Administration announced that forthcoming OSHA regulations will mandate vaccines or weekly testing for all private employers with 100 or more employees.

In addition, the Administration announced forthcoming regulations to address certain healthcare and educational settings. All of these measures are part of President Biden’s Covid-19 Action Plan “Path Out of the Pandemic,” which can be found here: www.whitehouse.gov/covidplan/

While we wait for more definitive guidance from the Safer Federal Workforce Task Force, the Department of Labor, the Department of Health and Human Services, and the Occupational Safety and Health Administration, now is the time to prepare for yet another shift for HR in the ongoing pandemic battle.

Executive Order for Federal Contractors

The Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors requires vaccinations for certain employees of federal contractors and subcontractors that enter into contracts or “contract like instruments” on or after October 15, 2021 for the procurement of services, construction, leasehold interest in real property, concessions and services covered by the Service Contract Act.

This EO applies to all subcontractors at any tier within these categories whose subcontract values exceed the simplified acquisition threshold, which as a general rule is $250,000. This EO does not apply to grants, certain contracts with Indian tribes, employees who work overseas, or subcontracts solely for the provision of products. Contracts solely for the purchase of goods, therefore, are exempt.

It is worth noting that this EO only requires employees that are performing on or working in connection with one of the types of covered contracts to be vaccinated. There will be Title VII/ADA carve-outs for the federal contractor vaccine mandate, according to the text of the EO (“it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law”).

This EO states the Task Force will publish additional guidance on or before September 24, 2021, so keep watch for additional details. If you have any questions regarding whether your company may be covered by the EO please give us a call.

Proposed OSHA Regulations

The Biden Administration also announced that OSHA is developing a rule mandating all employers with 100 or more employees require their employees to be vaccinated or undergo weekly COVID testing.

OSHA intends to issue an Emergency Temporary Standard (Federal OSHA ETS) to implement this requirement. Virginia employers will remember the Virginia Department of Labor & Industry’s July 2020 Emergency Temporary Standard which became its Final Permanent Standard. The Federal OSHA ETS is something different. Virginia is one of a handful of states with a “state plan,” meaning it has a state-level workplace safety administration (Virginia Occupational Safety & Health Program—or “VOSH”). How Virginia DOLI and the Safety and Health Codes Board will react administratively to the Federal OSHA ETS—which will determine how employers will need to react to it—is unknown for now.

No timetable has been announced on when OSHA will issue the Federal OSHA ETS. It is likely many weeks away—particularly in light of recent legal challenges, which are expected to pile up. Many employers have already implemented a similar policy in the workplace, which has led to additional questions about who is responsible for paying for the testing and whether testing is compensable time under these policies.

Employer-Mandated Testing

Who pays for testing time?

Under the Fair Labor Standards Act (FLSA), employers must pay for time spent waiting for and receiving medical attention at the employer’s direction or on its premises during normal working hours. If employers require employees to get tested before coming to work (on their own time) most should pay for the employee’s time.

For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic. The key consideration is whether the time was spent doing something “integral and indispensable” to the employee’s work.

However, employers that don’t want to pay employees for the time spent testing are not without options. For example, some employers require employees to produce a negative test result and leave the details to them. Whether your organization can take that approach depends and you should work with counsel to design a sound policy.

Who pays for the test itself?

Many employers want their employees to pay for the cost of the tests, a cost they could avoid by being vaccinated. Employers should look into the availability of free testing sites in their area and whether tests are covered under employees’ health plans.

In any event, employers should keep the ADA in mind, which allows employers to bar “direct threats” to the safety of a workplace. If you are going to classify an employee as a “direct threat”—be careful. If you’ve accommodated other employees under ADA or Title VII by allowing them to go unvaccinated, you could be undercutting the argument that an unvaccinated employee is a direct threat. If you are sending an employee for testing at a certain site (for example, if you’ve arranged testing with a local doctor’s office), then you must pay the costs, according to EEOC.

Clearly, there is a lot to unpack in all of the recent state and federal regulatory activity. Stay tuned for more information as the federal authorities begin to roll out more detailed guidance.

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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