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.

 

---

Federal Contractors

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)  

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 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.