Last week the Biden administration saw a spate of activity related to vaccine mandates from federal employees, federal contractors, and large employers (over 100 employees).
In order not to excel, Virginia introduced new revisions to the Final Permanent Standard that went into effect on September 8, 2021. Please see our companion article for more information on this change: “Recent Changes to Virginia’s Final Permanent Standard for COVID-19”.
This article will keep you informed of the latest state of federal regulations, but there is no one-size-fits-all compliance solution. Woods Rogers delivers bespoke solutions based on employers’ needs of what these recent changes require.
On September 9, 2021, the von Biden government ordered vaccination against COVID-19 for all contractors and federal employees. At the same time, the government announced that upcoming OSHA regulations will require vaccines or weekly tests for all private employers with 100 or more employees.
In addition, the government announced upcoming regulations for certain health and educational institutions. 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 await 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 look for another shift in the ongoing HR department Pandemic fight.
Implementing ordinance for federal contractors
The Executive Ordinance to ensure appropriate COVID security protocols for federal contractors requires vaccinations for certain employees of federal contractors and subcontractors who have contracts or “contract-like instruments” for the procurement of services, construction works, leaseholds on real estate on or after October 15, 2021 , Concessions and services that fall under the Service Contract Act.
This EO applies to all subcontractors of any tier within these categories whose subcontract value exceeds the simplified acquisition threshold, which is typically $ 250,000. This EO does not apply to grants, certain contracts with Indian tribes, employees who work abroad, or sub-contracts solely for the provision of products. Therefore, only contracts for the purchase of goods are excluded.
It is worth noting that this PO only requires vaccination of workers who are employed under or work in connection with any of the covered contracts. According to the text of the EO, there will be Title VII / ADA outsourcing for the vaccine mandate of the federal contractor (“it is necessary to require a COVID-19 vaccination for all federal employees, subject to the statutory exceptions”).
This EO states that the Task Force will publish additional guidance on or before September 24, 2021, so keep an eye out for more details. If you have any questions as to whether your company can be recorded by the PO, please give us a call.
Proposed OSHA Regulations
The Biden government also announced that OSHA is developing a rule requiring all employers with 100 or more employees to have their employees vaccinated or have weekly COVID tests.
OSHA intends to issue a Federal OSHA ETS Provisional Emergency Standard to implement this requirement. Virginia employers will recall the Virginia Department of Labor and Industry’s July 2020 interim emergency standard that became its final permanent standard. The Federal OSHA ETS is different. Virginia is one of the few states with a “state plan,” which means that it has a state-run Virginia Occupational Safety & Health Program (or “VOSH”). How Virginia DOLI and the Safety and Health Codes Board will administratively react to the Federal OSHA ETS – which determines how employers should react to it – is currently unknown.
No schedule has been announced for when OSHA will issue the Federal OSHA ETS. It is likely many weeks away – especially given the recent legal challenges that are expected to pile up. Many employers have already put a similar policy in place in the workplace, which has led to additional questions about who is responsible for the cost of the tests and whether tests are counted time under these guidelines.
Tests prescribed by the employer
Who pays for the trial period?
Under the Fair Labor Standards Act (FLSA), employers must pay for waiting time and medical care at the employer’s direction or on their 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, taking a COVID-19 test may be reimbursable as the tests are required for them to safely and effectively carry out their work during the pandemic. The decisive factor is whether the time was spent doing something “integrative and indispensable” for the employee’s work.
However, employers who do not want to pay their employees for the trial period are not without options. For example, some employers require their employees to submit a negative test result and leave the details to them. Whether your organization can take this approach depends, and you should work with a legal professional to develop a solid policy.
Who pays for the test?
Many employers want their employees to pay for the tests that vaccination could prevent them. Employers should check whether free testing sites are available in their area and whether the tests are covered by workers’ health plans.
In any case, employers should keep the ADA in mind, which enables employers to eliminate “direct threats” to job security. If you classify an employee as a “direct threat” – be careful. If you’ve placed other employees under ADA or Title VII by allowing them to remain unvaccinated, you could undermine the argument that an unvaccinated employee is a direct threat. If you send an employee to a certain location for an examination (e.g. if you have arranged a test with a local doctor’s office), you will have to bear the costs according to the EEOC.
Obviously, with all of the recent state and federal regulatory activity, there is a lot to unpack. Stay tuned for more information as federal agencies start rolling out more detailed guidance.