Dear Clients and Friends:
Welcome to our Friday Five Newsletter, where we share the Top Five Things You Need to Know This Week to Protect Your Work Community™ (in particular with respect to COVID-19) and help it thrive. Below are recent developments in the law, or questions that we find ourselves answering a lot. As always, please reach out with any questions, we are here for you. We can help you navigate the confusion of so many rules and recommendations, for your unique work community. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) The Federal Government Has Issued a Vaccine Mandate for Federal Contractors and Subcontractors.
As you may remember, President Biden established The Safer Federal Workforce Task Force (“the Task Force”) on January 20, 2021 for the purpose of “Protecting the Federal Workforce and Requiring Mask-Wearing.” On September 9, 2021 President Biden by Executive Order indicated that he was directing The Task Force to issue guidance mandating vaccinations of federal contractors and subcontractors. President Biden also said at that time there would be vaccine requirements for employers with 100 or more employees. That is not yet required. But stay tuned, if those requirements happen they will come from the Occupational Health and Safety Administration (“OSHA”).
Meanwhile, on September 24, 2021, The Task Force issued guidance ("the Guidance") for federal contractors and subcontractors on the topic of vaccines and safety.
“Covered Contracts” Must Now Include a Clause on Vaccine Mandates.
Effective November 14, 2021 “Covered Contracts and Contract-like Instruments” must include a clause (the contents of which are detailed in the next section), and Covered Contractors and any subcontractors must incorporate that clause into lower-tier subcontracts.
The first question therefore is, are you governed by a Covered Contract or Contract-Like Instrument? Covered Contracts are those for:
- Services, construction, or leasehold interest in property;
- Services covered by the Service Contract Labor Standards (formerly the Service Contracts Act);
- Concessions; and
- Work relating to federal property or lands and related to offering services for federal employees, their dependents, or the general public.
The requirements do not apply to
- Contracts or subcontracts below (currently) $250,000;
- Contracts and subcontracts solely for products;
- Employees who perform work outside of the United States; or
- Contracts or agreements with Indian Tribes.
The Guidance strongly encourages agencies to incorporate the clauses where not otherwise required.
The Guidance does not apply to current contracts, it applies instead to:
- Federal contracts or “contract-like instruments” awarded on or after November 14, 2021 whose contracts contain a clause requiring compliance with the guidance; and
- Existing contracts for which options to extend are exercised on or after October 15, 2021, and which modify the contract to include the clause.
Federal agencies are encouraged to include a clause requiring compliance in contracts awarded between October 15 and November 14, 2021, but that is not required unless the solicitation was issued after October 15, 2021.
What is The Clause and What Must Covered Contractors and Subcontractors Do to Comply with the Clause? Three Requirements.
The required clause needs to specify that the Covered Contractor or Subcontractor will, for the duration of the contract, comply with all Task Force guidance (now or in the future) that applies to the Covered Contractor or Subcontractor. In particular, by December 8, 2021 all Covered Contractors and Subcontractors must:
(a) Mandate that “covered employees” (those employees working in a “Covered Workplace,” whether or not they are working on a “covered contract” and whether they are physically in the workplace or not (meaning this applies to remote workers as well) are fully vaccinated for COVID-19 (unless legally entitled to an accommodation for medical condition, disability or sincerely held religious belief).
A “Covered Workplace” includes any worksite controlled by a Covered Contractor or Subcontractor where an employee working on or in connection with a Covered Contract is likely to be present at the facility (indoors or outdoors) during the period of performance, unless the Contractor can affirmatively determine that there will be no interaction between the employees and other persons at the site. Further, employees performing duties necessary to the performance of a covered contract, but not directly engaged in the specific work called for by the covered contract (think human resources or accounting or legal) qualify as working “on or in connection with” the contract.
Covered contractors must verify employee vaccination status by collecting documentation:
- Record of immunization from a healthcare provider or pharmacy
- COVID-19 Vaccination Record Card;
- Medical records documenting the vaccination;
- Immunization records from a public health or state immunization information system; or
- Other official documentation detailing the type of vaccine administered, date(s) of administration, and the name of the healthcare professional or clinic site that administered the vaccine.
The vaccination mandate and other requirements in the Guidance will apply even in states that have laws prohibiting certain actions required by the Guidance (like mandating vaccines).
(b) Ensure covered employees and visitors comply with masking and social distancing guidance while physically in a covered workplace.
Covered Contractors must ensure that covered employees and visitors comply with published CDC guidance for masking and social distancing at covered contractor workplaces, as follows:
- Wear appropriate masks consistently and correctly (covering mouth and nose);
- Wear appropriate masks in common areas or shared workspaces (think: cubicles, cafeterias, conference rooms);
- For individuals who are not fully vaccinated, wear masks in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated.
In areas of high or substantial community transmission (as defined by the CDC), all persons—including those fully vaccinated—must wear masks indoors. Fully vaccinated persons in low or moderate community transmission areas (as defined by the CDC) do not need to wear masks indoors. Fully vaccinated persons are exempt from the requirement to socially distance, regardless of the level of community transmission.
Any person who is not fully vaccinated should maintain six feet of distance from others “at all times, including in offices, conference rooms and all other communal and work spaces,” to the extent practicable.
The only exceptions to mask and social distancing requirements are those available for fully vaccinated individuals and those endorsed by CDC guidelines (think: alone in an enclosed office or while eating and drinking) or where employees are engaged in high-intensity activities that make breathing difficult, activities where a mask creates a risk to workplace safety, and activities that may cause a mask to get wet.
As with the vaccination mandate, covered contractors may have to provide accommodation, if possible, to covered contractor employees unable to wear a mask because of a disability, medical condition or sincerely held religious belief or practice.
(c) Designate a person or group of persons to coordinate COVID-19 workplace safety and monitor compliance with the Guidance.
The designated individual also must ensure that information related to the guidance and safety standards is communicated to all covered employees in a readily understandable manner and ensure there is signage informing visitors or other individuals at a covered contractor workplace about applicable safety requirements.
The Executive Order and the Guidance do not include any consequence for a failure to comply with the terms of the Executive Order or Guidance.
Many questions remain unanswered by the Guidance, particularly with respect to who is covered and who is exempt. We anticipate having clarification in the next weeks.
Some Ideas on Next Steps:
- Determine if you are covered by the Guidance;
- If you are covered, you will need to communicate the expectations to your employees in a manner that affords them time to become fully vaccinated before the deadline;
- If you are covered, create a plan for collecting and storing information (in compliance with privacy rules), and for responding to requests for exemption;
- Designate, if you haven't already, a person responsible for overseeing your safety protocols and (new) implementing the Guidance;
- Revisit your safety protocols to ensure they are in compliance both with California and federal law.
(3) CDPH Issued a New Vaccine Mandate Order for Adult Care Facilities and Direct Care Workers.
(2) Cal/OSHA Recently Discussed Proposed Permanent COVID-19 Regulations. Last week the California Occupational Safety & Health Standards Board (the “Cal/OSHA Board”) discussed proposed permanent COVID-19 regulations, but there still is no clear indication whether the regulations will become permanent. For now, just be aware regulations may be on the horizon.
The updated California Department of Public Health (CDPH) mandate mirrors its August 5, 2021 mandate, and includes that unvaccinated employees are required to test once a week. A link to the requirements may be found here.
(4) Reminder: SPSL Requirements Expired on September 30, 2021.
As you know, California employers with 26 or more employees were required to provide Supplemental Paid Sick Leave to employees who needed to miss work for covered COVID-19 related reasons. That obligation expired on September 30, 2021, and Governor Newsom has stated it will not be extended. Double check your city or county ordinance to determine whether any COVID sick leave requirements continue to apply and stay tuned for city- or county-specific action on this subject.
(5) Reminder: Optional EPSL and EFML Entitlements (and Tax Credits) Expired on September 30, 2021.
You will recall that under federal law certain employers had the option to continue granting paid time off for Emergency Paid Sick Leave and Emergency Family and Medical Leave through September 30, 2021 and employers electing to do so were entitled to employment tax credits. This benefit has expired as of September 30, and there is no indication it will be extended.
We Are Here For You
We hope this information is helpful as you navigate the recent developments and constantly changing laws. Please stay tuned, we will continue keeping you updated. And please, reach out if you have questions or just want to talk!