On Sept. 9, President Biden unveiled a six-pronged national strategy to combat the spread of COVID-19, which will impact large private employers and federal contractors. Our current information comes from the White House and U.S. Department of Labor briefings as well as information posted on the White House website—Path Out of the Pandemic – President Biden’s COVID-19 Action Plan.
Two issues of concern for ABC members are:
The Department of Labor’s Occupational Safety and Health Administration is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard to implement this requirement.
Also, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS.
NOTE: OSHA indicated that the ETS will be issued in the coming weeks.
Building on his announcement in July, President Biden has signed an executive order to require all federal executive branch workers to be vaccinated. The president also signed an executive order directing that this standard be extended to employees of contractors that do business with the federal government.
NOTE: According to the EO, the Safer Federal Workforce Task Force is required to provide guidance outlining what is required of federal contractors by Sept. 24. Until the guidance is issued, it is unclear what will be required.
Frequently Asked Questions:
On Sept. 10, ABC participated in a conference call with OSHA officials and the below ETS FAQs reflect the latest information. Please note this information could change once the ETS is officially issued.
- When does this policy affecting companies with more than 100 employees take effect, and will ABC be engaging with OSHA on the forthcoming ETS?
OSHA officials indicated that the ETS will be issued in the coming weeks. When the ETS is published in the federal register as an interim final rule, it will be effective immediately in states where OSHA has direct jurisdiction. The public will only have an opportunity to submit comments on the ETS after it is published. (Generally, the comment period is 30 to 60 days.) The comments will then be used by OSHA to draft a final rule, which OSHA is expected to issue six months after the ETS is published in the federal register. Because this new policy will create uncertainty and additional burdens on ABC members, ABC plans to engage with OSHA before the ETS is issued and submit comments when possible to express our concerns.
- How will the ETS impact State OSHA plans?
The 22 states with State OSHA plans will have 30 days to implement the ETS from the date the interim final rule is published in the federal register. OSHA will work with the states to get their plans into compliance.
- How is the 100+ employee threshold measured?
OSHA indicated that the 100+ threshold for coverage will be measured by company, not worksite.
- Will the ETS testing/vaccination requirement extend to all employees?
No. OSHA indicated that employees who work remotely and are never present at the worksite do not fall under the vaccination or testing requirements.
- Will the ETS require employers with 100+ employees to provide paid time off for the time it takes workers to get vaccinated or to recover from post-vaccination side effects?
- If an employer has 100+ employees and is also a federal contractor, will it be expected to comply with both the ETS and federal contractor rules?
Yes. It is expected that OSHA and federal agencies will work to ensure the ETS and vaccination mandates imposed on federal contractors are consistent.
- What other issues is the ETS expected to cover?
Who will pay for weekly testing of unvaccinated employees, how employers can verify vaccination status and/or test results, and what level of vaccination is sufficient (i.e., one shot, two, boosters?) and possible exemptions. Additionally, OSHA said enforcement of the new requirements/disciplinary policies for workers who refuse to prove vaccination status and/or test will be up to the employer.
- When does the vaccination policy affecting federal contractors take effect, and will ABC be commenting on the rule?
The EO affecting federal contractors directs the Director of the Office of Management and Budget to approve the Sept. 24 Safer Federal Workforce Task Force guidance if it will “promote economy and efficiency in Federal contracting.” If the guidance is approved by the OMB, the Federal Acquisition Regulatory Council shall amend the Federal Acquisition Regulations and shall take initial steps by Oct. 8 to “implement appropriate policy direction to acquisition offices” for federal contracts. The new policy will apply to federal contracts issued on or after Oct. 15. However, it is possible this implementation date will be delayed due to legal challenges or delays in the regulatory process.
Because this new policy will create uncertainty and additional burdens on ABC federal contractors, ABC plans to engage with the task force before the guidance is issued and express our concerns. Additionally, ABC plans to participate in the FAR rulemaking process.
- Does the EO apply to all employees of a federal contractor or just federal contractor employees on a covered jobsite?
This is unclear and will likely remain so until the task force guidance is issued. However, the EO says that the policy will apply to federal contractors and subcontractors at “…any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).”
- Will these polices be challenged in the courts?
Both policies will almost certainly be challenged in the courts by a variety of government, private and business stakeholders, which may affect the regulatory process, rollout and effective date of the new policies. It is unclear at this time what role ABC will play in any legal proceedings.
Roundup of Resources on the President’s Action Plan:
Additionally, see ABC’s general counsel, Littler Mendelson’s article “President Biden’s COVID-19 Action Plan—What Employers Want to Know.”
In light of changing guidance regarding vaccine policies, ABC has updated resources on the COVID-19 Vaccine Toolkit as part of the Coronavirus Update webpage to help inform and educate members about the latest available resources and information on the COVID-19 vaccine.
ABC is closely monitoring the president’s action plan and will provide additional guidance as soon as significant details are made available.