Three major developments pertaining to COVID-19 in the workplace have just emerged from the federal government. These developments affect federal employees and contractors, as well as all private employers with 100 or more employees.
First, on September 9, 2021, President Biden issued “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees.” This Executive Order requires COVID-19 vaccination for all federal employees—without an option for those who prefer to be regularly tested instead—subject to limited exceptions required by law (i.e., sincerely held religious beliefs or a medical exception). The Executive Order directs the Safer Federal Workforce Task Force (established by President Biden earlier this year) to issue guidance by September 16, 2021 on how federal agencies should implement this new vaccination requirement. The full text of the President’s September 9, 2021 Executive Order pertaining to federal employees can be accessed here: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-employees/.
Second, the President issued another Executive Order on September 9, 2021 entitled “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.” This Executive Order requires that some new federal contracts (including extensions or renewals of existing contracts) include a clause requiring that the contractor and any subcontractors abide by guidance published by the Safer Federal Workforce Task Force regarding COVID-19 safeguards in the workplace. The Executive Order directs the Safer Federal Workforce Task Force to issue guidance regarding COVID-19 requirements for federal contractors by September 24, 2021. It is unclear at this time how the guidance will impact existing federal contracts, if at all. It is also unclear exactly which new federal contracts will be covered by the guidance (the Executive Order specifically states that contracts for services, construction, concessions, and property leases will be covered, but not subcontracts solely for the provision of products). Thus, federal contractors should wait until the guidance is issued before implementing any changes to their current COVID-19 policies and practices. The full text of the President’s September 9, 2021 Executive Order pertaining to federal contractors can be accessed here: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/.
Third, on September 9, 2021, the President announced a proposed emergency rule that will mandate all businesses with 100 or more workers to require employees to either be vaccinated or face weekly COVID-19 testing. The proposed rule will also mandate that businesses offer employees paid time off to get vaccinated and to recover from any side effects. These requirements will be imposed by the U.S. Department of Labor via the Occupational Safety and Health Administration (“OSHA”). OSHA is expected to publish the emergency rule within the coming weeks. According to commentary from senior Biden officials, OSHA could fine non-complying businesses up to $14,000 per violation. Note that numerous business leaders and politicians have voiced opposition to the President’s proposed rule, so it is possible that there may be legal challenges to the rule before it is ever implemented. As such, employers should wait to make any changes to their COVID-19 policies until OSHA’s emergency rule has been issued.
Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients contact The Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.