COVID-19 Vaccine Mandates
|BREAKING NEWS, Jan. 13, 2022: NUCA's position on the employer vaccine mandate was upheld by the U.S. Supreme Court.
The highest court has struck down the Biden Administration's OSHA ETS vaccine mandate for private businesses of more than 100 employees. The SCOTUS decision is here.
NUCA issued this email to all of our members later that afternoon.
There are two federal Covid-19 vaccine mandates being discussed during fall 2021 and winter 2022. Make sure you understand the requirements are different, depending on your status described here:
The first one, issued on Sept. 14, 2021, applies only to private companies working on federal contracts.
The second one, issued on Nov. 5, 2021, applied to all private companies in the U.S. with 100 or more employees.
Please read the section(s) below for news, information, and links below for the situation applicable to your NUCA member business.
UPDATE: NUCA sent a message via email to the entire membership on December 29, 2021, updating the latest information on the federal mandates, the January SCOTUS hearing, and approaching compliance deadlines.
Executive Order 14042, "Ensuring Adequate COVID Safety Protocols for Federal Contractors", was published in the Federal Register on Sept. 14, 2021. It conveys the President's authority and directions for this Covid-19 vaccine mandate affecting federal contractors. The EO was adjusted by the Nov. 5 OSHA rulemaking to align the implementation date with the new rule for non-federal contractor private businesses.
Besides requiring federal contractor employees to be fully vaccinated by January 4, 2022, the Executive Order imposes other pandemic related workplace safety obligations.
- A vaccine mandate requiring full vaccination for employees of covered federal contractors by January 5, with limited exceptions for those legally entitled to an accommodation (prior COVID-19 infection or antibody tests are not accepted as substitutes);
- Mask and physical distancing requirements at covered contractor worksites (including for employees, visitors and others); and
- A requirement that contractors designate a person or persons to coordinate COVID-19 workplace safety efforts at their workplaces. (Source)
The vaccine mandate covers any full-time or part-time employee working “on or in connection with” a government contract. This includes employees working remotely from a private residence on or in connection with a covered contract, as well as employees who might be only indirectly engaged in supporting the government contract, such as those in human resources, information technology, billing and legal review functions. Additionally, the vaccine mandate applies to all employees at “workplace locations” where covered employees are “likely to be present,” including both the contractor’s workplace (even outdoor workplaces) and federal workplaces. (Source)
|U.S. Government Resources:
FAQ From Safer Federal Workforce
Answers from the U.S. Government for government contractors on the mandate: Vaccination protocols, scope, workplaces, compliance, on-site employees, and more.
Safer Federal Workforce.gov: COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (PDF)
While not part of the federal vaccine mandates that will be considered by the U.S. Supreme Court on Jan. 7, challenges to the federal contractor rule are also expected to end up before the country's highest judicial body.
Additional Reources On The Federal Contractor Mandate:
Littler: An Update on the Federal Contractor Vaccine Mandate: No Need to Comply for Now, but Private Arrangements May Still be Enforceable (Jan. 20, 2022)
Stinson: Government Contractor Vaccine Mandate Still Stayed Despite Government Attempts to Overturn (Jan. 7, 2022)
Schwabe Williamson PC: Safer Federal Workforce (USG) Publishes Update Regarding Court Injunctions Against Federal Contractor Vaccine Mandate (Dec. 13, 2021)
Proskauer: Federal Government Confirms It Is Currently Not Enforcing Contractor COVID-19 Requirements (Dec. 9, 2021)
NEWS: The Hill: Judge halts Biden vaccine mandate for federal contractors nationwide (Dec. 7, 2021)
A federal judge in Georgia temporarily halted the Biden administration’s COVID-19 vaccine mandate for federal contractors across the country.
Littler: Federal Contractor and Subcontractor Vaccine Mandate Temporarily Enjoined in Kentucky, Ohio, and Tennessee (Dec. 1, 2021)
Stinson: White House Fact Sheet Results in Additional Questions for Government Contractors (Nov. 9, 2021)
Littler LLC: White House Extends Deadline for Employers Covered by the Federal Contractor Vaccine Mandate to January 4 (Nov. 4, 2021)
NEWS: The Hill: White House gives federal contractors flexibility in enforcing vaccine mandate (Nov. 1, 2021)
McGuire Woods: Mandatory Vaccination Coverage Expanded in Practice for All Federal Contractors and Subcontractors (Oct. 19, 2021)
The Federal Acquisition Regulatory (FAR) Council and federal agencies have taken an aggressive position in rolling out the vaccination mandate, “encouraging” contracting officers to include the EO clause in all federal contracts beginning Oct. 15, 2021.
Wilmer Hale: COVID-19: White House Task Force Issues Guidance for Federal Contractor Vaccine Mandate (Sept. 30, 2021)
Fisher Phillips: Federal Contractors Face Vaccine Mandate by December 8: An Employer’s Plan for Success (Sept. 27, 2021)
What is required, which federal contractors are covered, when will the requirements clause be included in the contract, which employees are covered under the mandate, limited exceptions, is testing allowed in lieu of vaccination, and other aspects of this federal mandate are covered in this thorough brief.
All Other Private Employers (non-Federal Contractors)
Before this OHSA mandate was halted by the U.S. Supreme Court on Jan. 13, covered employers were facing these unnecessary OSHA regulations:
The "COVID-19 Vaccination and Testing: Emergency Temporary Standard," issued by OSHA as an Emergency Temporary Standard (ETS), was published in the Federal Register on November 5, 2021. The White House announced on September 9, 2021, it would issue an order mandating a Covid-19 vaccine for all employees in private companies with 100 or more employees to be issued this fall.
This 154-page OSHA ETS requires employers with 100 or more employees—including construction (i.e., “covered employers”)--to receive a Covid-19 vaccine under these guidelines:
- Covered Employees To Be Vaccinated by January 10, 2022, and Require Unvaccinated Employees to Produce a Negative Test on at Least a Weekly Basis: All covered employers must ensure that their employees have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 10, 2022. After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS lays out the wide variety of tests that comply with the standard. Given that vaccines are safe, free, and the most effective way for workers to be protected from COVID-19 transmission at work, the ETS does not require employers to provide or pay for tests. Employers may be required to pay for testing because of other laws or collective bargaining agreements.
- Pay Employees for the Time it Takes to Get Vaccinated: All covered employers are required to provide paid-time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.
- Ensure All Unvaccinated Employees are Masked: All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
- Other Requirements and Compliance Date: Employers are subject to requirements for reporting and recordkeeping that are spelled out in the detailed OSHA materials available via their official website (link below). While the testing requirement for unvaccinated workers will begin after January 10, 2022, covered employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on December 5, 2021.
As an ETS, the requirements will be in effect for 6-months, at which time OSHA must decide whether to proceed with a permanent rulemaking process. States with approved OSHA plans, such as California and Washington, must adopt similar requirements.
|U.S. Government Resources:
OSHA's ETS COVID-19 Vaccination and Testing Website
This official OSHA government website covers information about the standards, fact sheets, policy templates, FAQs, and additional resources about this ETS. Questions such as "Are employees who work exclusively outdoors counted? " and "Who qualifies as covered employees under the ETS?" are covered. NUCA encourages its members to review this website for official information, and send it to your executive, safety, and personnel employees.
USDOL Webinar on ETS for Vaccine and Testing
This 30-minute webinar explains the mandate and who is covered by it.
Summary of ETS for Vaccination and Testing Document (PDF)
This 2-page OSHA summary explains the highlights of the ETS and its requirements.
NUCA and our CISC coalition partners on September 27 sent the White House our official joint comment letter on the proposed mandate, which can be read here. Our coalition believes that these mandates are not needed to ensure a safe workplace in our industry. NUCA and CISC reviewed the November 5 OSHA ETS and submitted extensive additional comments to the agency on Dec. 17, 2021.
Numerous court challenges to the ETS were undertaken almost as soon as the Administration issued its mandate. The 5th Circuit Court was the first to issue a nationwide injunction against the mandate on Nov. 12, and OSHA announced Nov. 17 it would follow the court's direction and suspend work on the standard. The 6th Circuit Court was selected by lottery on Nov. 16 to hear the consolidated challenges. The 6th Circuit Court ruled 2-1 on Dec. 17 to reinstate the OSHA mandate, setting off an appeal to the U.S. Supreme Court for a final decision.
The U.S. Supreme Court held a special hearing Jan. 7, 2022, on the legality of Biden administration vaccine mandates on healthcare workers and private companies with more than 100 people.
On Jan. 13, 2022, the U.S. Supreme Court blocked the Biden Administration's OSHA Emergency Temporary Standard vaccine-or-test mandate for large employers with more than 100 employees, preventing implementation of a policy which would have forced many employers to either mandate vaccination or face large fines. In the 6-3 decision, the court's majority found that the administration did not possess the legal authority to impose a sweeping workplace vaccine mandate. However, in a separate 5-4 decision, the court upheld a vaccine mandate for certain healthcare workers.
Employers are now released from their obligation to meet any part of OSHA's vaccine ETS, issued on Nov. 5, 2021. Please check with your state authorities for their own requirements, as this decision only affects the federal mandate.
UPDATE: OSHA officially withdrew their Nov. 5 ETS from consideration on Jan. 26, 2022, as announced in the Federal Register. OSHA has informally stated that the agency is still exploring moving forward with a permanent rule and will continue to treat the withdrawn ETS as a proposed rule, subject to the usual rulemaking process, which can take several months.
NUCA will issue continued informational guidance to the membership. This section will be updated as news and information warrant.
Additional Resources On The Private Employer Mandate:
Winthrop & Weinstine: What’s Happening with OSHA’s ETS? (Feb. 1, 2022)
Seyfarth Shaw: OSHA Acknowledges Reality, Withdraws COVID-19 Vaccination and Testing ETS (Jan. 26, 2022)
Weintraub Tobin: The U.S. Supreme Court Stays Enforcement of OSHA’s Nationwide Vaccine Mandate Because It Exceeds OSHA’s Authority (Jan. 14, 2022)
Fisher Phillips: Supreme Court Strikes Down OSHA’s Vaccine ETS: An Employer’s 6-Step Priority List (Jan. 13, 2022)
Seyfarth Shaw: Latest Biden Administration Order Requires Some Employers to Pay for Cost of COVID Testing (Jan. 12, 2022)
NEWS: Washington Post: Supreme Court seems skeptical of Biden’s vaccine rules for businesses (Jan. 7, 2022)
NEWS: Construction Dive: Supreme Court to hear arguments on vaccine mandates for employers (Dec. 24, 2021)
Cohen Seglias: The Sixth Circuit Reinstates OSHA’s COVID-19 Vaccine Mandate (For Now) (Dec. 24, 2021)
OSHA announced a temporary ETS enforcement policy, with no citations issued before Jan. 10 for non-compliance on employee Covid vaccine status and written policies.
Morgan Lewis: OSHA’s COVID-19 Emergency Temporary Standard Is Back – For Now (Dec. 21, 2021)
Conn Kavanaugh: Return of the ETS: 6th Circuit Lifts Stay of Vaccination or Weekly Testing Mandate for Large Private Employers; OSHA Issues New Deadlines (Dec. 20, 2021)
McGuire Woods: Sixth Circuit Lifts Stay of OSHA Emergency Vaccine Mandate for Large Employers (Dec. 20, 2021)
News: Appeals court reinstates Biden’s vaccine policy for businesses, setting up a likely showdown at Supreme Court (Dec. 17, 2021)
Novack Macey LLP: Sixth Circuit Poised to Rule on the Vaccine-or-Test Mandate By End of Year (Dec. 10, 2021)
Littler: Mandatory Employee Vaccines – Coming to A State Near You? (Dec. 6, 2021)
Cohen Seglias PC: Will It Stay or Will It Go? OSHA's COVID-19 Vaccination Mandate (Nov. 29, 2021)
Steptoe Johnson PLLC: Sixth Circuit Will Hear Legal Challenges to OSHA’s Mandatory Vaccination and Testing Standard (Nov. 18, 2021)
Seyfarth Shaw LLP: Impacts of 5th Circuit Extension on Employers OSHA ETS Compliance (Nov. 17, 2021)
Fisher Phillips: OSHA’s Vaccine ETS Encounters More Turbulence as Appeals Court Extends Halt – How Can Employers Make a Smooth Landing? (Nov. 17, 2021)
Discusses compliance readiness, what's next, and risk tolerance for the ETS.
Franczek PC: OSHA Announces It Is Suspending Vaccination ETS Pending Court Challenges (Nov. 17, 2021)
Kilpatrick Townsend: Despite 5th Circuit Stay, Large Employers May Still Have Legal Requirements to Satisfy By December 6 (Nov. 16, 2021)
The most burdensome requirement with a December 6 deadline is determining employees’ vaccination status, collecting and retaining proof of such status, and creating a roster of employees’ vaccination status.
Faegre Drinker: OSHA Suspends Emergency Temporary Standard (ETS) Enforcement Following Fifth Circuit Ruling – Now What? (Nov. 16, 2021)
CDF Labor Law: Federal Vaccine Mandate Will Remain On Hold For Foreseeable Future - Next Stop Supreme Court? (Nov. 15, 2021)
Mintz: OSHA Vaccine Rule Blocked Permanently by Fifth Circuit, But Judicial Review Will Continue (Nov. 15, 2021)
News: Engineering News-Report: US Appeals Court Halts OSHA Vaccine Mandate, Unclear How Long (Nov. 15, 2021)
Robinson Cole: OSHA’s COVID-19 Emergency Temporary Standard (Nov. 11, 2021)
Katten Muchin LLP: Q&A - A Closer Look at OSHA's Vaccination Requirement for Employers With 100+ Employees (Nov. 9, 2021)
This Q&A addresses the most significant and practically relevant points of the requirement, and references additional resources available to help educate employers about this OSHA standard.
Ruder Ware: Federal Appeals Court Halts OSHA ETS! What does this Mean for Employers? (Nov. 8, 2021)
Epstein Becker: Biden’s Vaccine Mandate Rules Are Out and the Deadlines to Comply Are Sooner Than You Think: What Employers Need to Know Now (Nov. 8, 2021)
A good summary of the requirements employers should follow to meet OSHA's requirements for their vaccine ETS.
Nat'l Law Review: Federal Appeals Court Stays OSHA’s COVID-19 Vaccine Emergency Temporary Standard (Nov. 8, 2021)
J.J. Keller: OSHA releases long-awaited vaccination testing standard (Nov. 4, 2021)
Summarizes top duties expected of a contractor under this mandate.
Proskauer: New Federal Vaccine Rule - Wage and Hour Implications (Nov. 4, 2021)
Fox Rothschild: EEOC Issues Additional Guidance on Mandatory COVID-19 Vaccinations, Religious Objections and Accommodations (Oct. 29, 2021)
Murtha Cullina: Handling COVID-19 Vaccination Mandates: Federal Agencies Continue to Issue Guidance (Oct. 28, 2021)
The EEOC and HHS have released additional guidance addressing common employer concerns regarding vaccination status, discrimination, and reasonable accommodations.