President Biden’s Broad COVID-19 “Hard” Vaccine-Mandate for Federal Contractors

By Conn Maciel Carey’s COVID-19 Task Force

While we have been mostly focused on the September 9th directive from President Biden to fed OSHA to issue a COVID-19 vaccination / testing emergency temporary standard, that was hardly the only major move the Administration announced on the vaccine-mandate front.  This update will focus on federal contractors – companies that provide services to the federal government through direct contracts with federal agencies and through subcontracts in support of federal contracts.

On the same day last month that Pres. Biden announced the OSHA “soft” vaccine mandate for private employers that serve only private customers, he also issued an executive order (EO) setting three new requirements for federal contractors at all tiers:

    1. Setting a “hard” vaccine mandate – “Covered Contractor Employees” must be fully vaccinated by January 18, 2021 (and thereafter before starting to work on any federal contract);
    2. Designating a COVID-19 safety coordinator to communicate requirements to employees and non-employees at your “Covered Contractor Workplaces”; and
    3. Ensuring all individuals at a “Covered Contractor Workplace” comply with CDC masking and distancing guidance.

For months now, since January 2021, contractors and subcontractors working in-person on federal property have already been required to provide a self-certification that they were fully vaccinated OR had received a recent negative COVID-19 test.  (See EO 13991 – “Protecting the Federal Workforce and Requiring Mask-Wearing”).  The new EO for federal contractors eliminates the “testing-out option” and expands the mandate beyond just federal properties to also cover private workplaces, or really any place at all, where an individual is working in support of a covered federal contract.

Only those unvaccinated employees who are “legally entitled to an accommodation” for medical or religious reasons may continue to be employed to work on federal contracts.  There are no exceptions for people who previously were infected and recovered.  Anti-body tests are not acceptable to prove vaccination status.  Under limited special circumstances involving an “urgent, mission critical need”, a federal agency may allow certain individuals who are not fully vaccinated to continue working for only up to 60 days from beginning the work on a covered contract or in a covered workplace.

Another development of this federal contractor mandate is that employers must review covered employees’ official documentation to verify vaccination status (i.e., the white card or an official record from a health department database), and self-attestation is not an acceptable substitute.

Who is covered by the various requirements of the EO? Continue reading

Q&As About Fed OSHA’s New COVID-19 Vaccination and Testing Emergency Rulemaking

By Conn Maciel Carey’s COVID-19 Taskforce

Last Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.

While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country.  To help our clients and friends in industry prepare for and navigate this emergency rulemaking, we have prepared an extensive list of Q&As about OSHA’s Emergency Rulemaking for a COVID-19 Vaccine-Mandate ETS.  Also, here are links to an article we prepared summarizing OSHA’s new emergency rulemaking, a recording of the webinar about the ETS we conducted last week, and the slides we used.

We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.  To that end, Conn Maciel Carey LLP is organizing a coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.

For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall.  First, Continue reading

Fed OSHA’s New COVID-19 Vaccine-Mandate Emergency Rulemaking [Webinar Recording]

On September 17, 2021, attorneys from Conn Maciel Carey LLP’s COVID-19 Task Force presented a webinar reviewing OSHA’s new COVID-19 emergency rulemaking focused on vaccine and testing mandates for many US employers.

On September 9th, President Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.

The President’s announcement was lean on details, and prompted as many questions as it answered. The attorneys from CMC’s OSHA and Employment Law practices discussed our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading

OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State” [Webinar Recording]

On August 15, 2017, Kathryn M. McMahon, Amanda Strainis-Walker, and Micah Smith of Conn Maciel Carey’s national OSHA Practice, presented a webinar regarding the OSHA Status of Pres. Trump’s Agenda for the “Deconstruction of the Administrative State”

President Trump was carried to the White House on promises (or threats) of rolling back government regulations.  At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed much of Trump’s agenda with the phrase, “deconstruction of the administrative state,” meaning the system of regulations and taxes that the president says have stymied economic growth.  OSHA regulations are apparently at the heart of this deconstruction.  Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape.  This webinar will take a deep dive into the actions taken by the Trump Administration in conjunction with the Republican Congress to roll-back OSHA regulations or otherwise lessen the punitive influence of OSHA on our nation’s employers.  From the repeal of several Obama-era midnight rules, to a budget proposal that could gut OSHA’s enforcement efforts, to a series of Executive Orders that shift to a business friendly regulatory agenda.

This webinar addressed:

Continue reading