OSHA’s VACCINE OR TEST RULE REMAINS IN LIMBO FOLLOWING ARGUMENTS BEFORE THE U.S. SUPREME COURT

By Sally A. Piefer

As you know, in early November, OSHA announced an emergency temporary standard (“ETS”) which affects employers with 100 or more employees. The ETS directs these covered employers to develop, implement, and enforce a written mandatory COVID-19 vaccination policy—or to adopt a written policy requiring employees to either choose to be vaccinated or to be tested regularly and wear a face covering at work.

The ETS was immediately challenged, and within a few days, the ETS was halted nation-wide by the 5th Circuit Court of Appeals. Additional lawsuits were filed across the country in an effort to gain an advantage over which federal Circuit Court would ultimately determine the ETS’ validity. The 6th Circuit Court of Appeals was selected in the lottery, and many believed the ETS might not survive the legal challenges, because the 6th Circuit was largely made up of Republican-appointees.

In mid-December, the 6th Circuit decided to lift the 5th Circuit’s Order preventing the ETS from taking effect. The Court’s decision resulted in an immediate appeal to the U.S. Supreme Court. OSHA pressed forward and adjusted its enforcement dates, saying that it would not issue citations for noncompliance with any documentation requirements before January 10, 2022 and would not issue citations for noncompliance with the testing requirements before February 9, 2022.

This morning, the U.S. Supreme Court heard oral argument on whether the ETS should be stayed pending resolution of the legality of the rule by the 6th Circuit. This morning’s hearing has not resulted in a decision, and ongoing questions loom on whether the ETS will take effect on Monday. A number of the Justices appeared to be in favor of a short stay until a decision could be made by the high court. Several historically conservative Justices appeared to be in favor of the ETS and appeared not likely to favor a long-term stay. The Justices gave no indication when they would issue a decision, but the decision will likely signal the high court’s view of the underlying merits of the case.

Our impression is that this will be a close call. We anticipate that Justices Thomas, Kagan, Breyer and Sotomayor will not be inclined to favor a stay, and these justices focused a number of their comments and questions on the widespread nature of the Omicron variant. Justices Roberts, Barret and Gorsuch appeared to question OSHA’s authority and seemed inclined to favor of a stay. It is unclear how Justices Cavanaugh and Alito will side, based on their comments and questions this morning.

We encourage employers to continue to prepare as if the ETS will become effective on Monday, January 10, 2022. This means you need to continue to take the following steps:

  • Create a policy on vaccination or testing with mask wearing
  • If you will offer employees the option of weekly testing, decide who will bear the cost for testing, and provide employees with paid time off to get vaccinated and to recover from the side effects of the vaccine
  • Ascertain the vaccination status of each employee and obtain acceptable written proof of vaccination
  • Maintain records of the vaccination status for each employee
  • Provide materials encouraging vaccination to your employees and provide information about the ETS
  • Ensure that all employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes—and enforce this requirement
  • Require employees to immediately provide notice of a positive COVID-19 test or diagnosis and ensure that any employee with a positive test is removed from the workplace pursuant to CDC guidelines
  • Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours
  • Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

If you have questions or need assistance with policy development, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new directives, rules, or guidance.

OSHA’s VACCINE OR TEST RULE IS BACK IN PLAY

By Sally A. Piefer

In early November, the Biden administration announced additional steps it was taking to battle the COVID-19 pandemic. The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a new emergency temporary standard (“ETS”) which it claimed would “protect more than 84 million workers from the spread of the coronavirus on the job.”

Under this ETS, employers with 100 or more employees (as of November 4, 2021) were directed to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers could adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

Within days after the ETS was released, lawsuits were filed in an effort to halt the rule from going into effect. Parts of the ETS required employers to take certain actions by early December, and the testing/vaccination portion of the rule was slated to go into effect on January 4, 2022. On November 6, 2021, the ETS was halted nation-wide by the Fifth Circuit Court of Appeals. More lawsuits—both in favor and against the ETS—were filed across the country in an effort to gain an advantage in which federal Circuit Court would ultimately determine the ETS’s validity.

The Sixth Circuit Court of Appeals, with jurisdiction over Kentucky, Michigan, Ohio and Tennessee, was selected in the lottery. Many believed that based on the political makeup of that court, largely Republican-appointees, that the ETS might not survive the legal challenges.

The looming winter months, increased hospitalizations for COVID and the Omicron variant took the world by surprise in late November, and health experts opined that Omicron may spread even more quickly than the Delta variant.

Just a few days earlier, the Sixth Circuit determined the ETS’ fate would be decided by a 3-judge panel rather than a single judge. Sixteen active judges on the Sixth Circuit wrote opinions in favor and against this decision, and there was speculation in the legal community on who would sit on the 3-person panel for the Sixth Circuit and determine the ETS’ fate. Legal scholars surmised that based on the concurring and dissenting opinions filed regarding the decision to have a 3-judge panel, that the panel consisted of one judge appointed by the Obama administration, one judge appointed by the George W. Bush administration, and one judge appointed by the Trump administration.

The Biden administration asked the Court to dissolve the Fifth Circuit’s stay. Late on Friday, December 17, 2021, the Sixth Circuit Court of Appeals panel, in a largely unexpected move—and in a divided opinion—decided to lift the Fifth Circuit’s Order preventing the ETS from taking effect. The Court’s 56-page opinion explained, in part, that

Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs….

The Court’s decision resulted in an immediate appeal to the U.S. Supreme Court, where another lawsuit is already pending on the legitimacy of the vaccine mandate for health care workers. The question, of course, is whether the ETS will satisfy the “grave danger” requirement for OSHA to have avoided the normal rule-making process.

What now for employers?

When the ETS was halted by the Fifth Circuit, we encouraged employers to continue to plan as if the ETS would take effect, so that employers would not be blindsided if the ETS were allowed to stand. Employers will now, a week before the year-end holidays, need to make sure they are ready for the ETS requirements on January 10, 2022. OSHA has indicated it will not issue citations before January 10, 2022 so that employers can implement the requirements.

Employers who have not already continued to plan for the ETS are encouraged to immediately take the following steps:

  • Create a policy on vaccination or testing with mask wearing
  • If you will offer employees the option of weekly testing, decide who will bear the cost for testing, and provide employees with paid time off to get vaccinated and to recover from the side effects of the vaccine
  • Ascertain the vaccination status of each employee and obtain acceptable written proof of vaccination
  • Maintain records of the vaccination status for each employee
  • Provide materials encouraging vaccination to your employees and provide information about the ETS
  • Ensure that all employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes—and enforce this requirement
  • Require employees to immediately provide notice of a positive COVID-19 test or diagnosis and ensure that any employee with a positive test is removed from the workplace pursuant to CDC guidelines
  • Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours
  • Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

If you have questions or need assistance with policy development, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new directives, rules, or guidance.

LINDNER & MARSACK, S.C., WELCOMES ATTORNEY SAMUEL DRAVER TO WORKER’S COMPENSATION DEFENSE TEAM

Lindner & Marsack, S.C., announced today that Attorney Samuel Draver has joined the firm as an Associate on their Worker’s Compensation Defense team. Draver will split his time between the Milwaukee and Madison offices of Lindner & Marsack.

Prior to joining Lindner & Marsack, Draver worked for other Milwaukee law firms in the areas of worker’s compensation defense, labor law and personal injury.

“Sam will be a great asset to our widely recognized worker’s compensation defense practice,” says Firm President Oyvind Wistrom. “We continue build depth and experience on our team that translates to reliable results and consistent, trusted counsel for our clients.”

Draver received his law degree from Marquette University Law School in 2017 and his Bachelor of Arts in 2014, also from Marquette University. During law school, he served on the Student Bar Association Executive Board and interned with the Wisconsin Supreme Court. Draver is a member of the State Bar of Wisconsin and the Wisconsin Association of Worker’s Compensation Attorneys (WAWCA).

AT-HOME COVID-19 TESTS SOON TO BE COVERED BY EMPLOYER HEALTH PLANS

By: David Keating

On December 2, President Biden announced a nine-point action plan to combat COVID-19 as the United States heads into the winter months and with the emergence of a new variant, Omicron.  One of the actions announced calls for the Departments of Health and Human Services, Labor and the Treasury to issue guidance by January 15, 2022 to clarify that individuals who purchase over-the-counter COVID-19 at-home diagnostic tests may seek reimbursement from their group health plan or health insurance issuer at no cost to the health plan participant during the public health emergency.

The Department of Health and Human Services Secretary has renewed the public health emergency every three months since January 2020.  The current public health emergency expires on January 15, 2022.  Based on the deadline for the guidance and the wording of the action plan, it is certainly expected that the public health emergency will be extended into the foreseeable future.

Under the current guidance, over-the-counter at-home COVID tests are covered at no cost to the health plan participant only when ordered by an attending health care provider following a determination of medical necessity.  The forthcoming guidance will likely eliminate the involvement of a health care provider.

The action plan states that workplace screening will remain consistent with current guidance.  Under the current guidance, coverage for COVID testing without health plan participant cost-sharing is not required if the purpose is general workplace health and safety (such as return-to-work programs, public health surveillance, or any other employment-related reason not primarily intended for individualized diagnosis or treatment of COVID-19.  The action plan may indicate that coverage for at-home testing without health plan participant cost-sharing will still not be required if the test’s purpose is to allow employees to return to the workplace in accordance with an employer’s policy and/or OSHA’s Emergency Temporary Standard for employers with 100+ employees (which is currently stayed pending litigation).  If that is the case, it would seem that it would be extremely difficult to monitor from a practical standpoint.

The action plan leaves open many questions for employer health plans that the forthcoming guidance should answer.  For instance, may group health plans impose limits (such as number, frequency, or dollar caps) on coverage and reimbursement of at-home tests without participant cost-sharing?  Will the at-home test be fully covered at the point of sale or will the health plan participant need to submit claims for reimbursement?  Employers should closely watch for the guidance to determine what changes will be required to their health plans and the costs associated to those changes due to the expanded scope of required coverage.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the President’s action plan or any other labor or employment issue involving your business, please contact us at any time.

EEOC EXPANDS ITS COVID-19 GUIDANCE CLARIFYING WHEN COVID-19 MAY BE A DISABILITY

By: David Keating

Throughout the pandemic, the Equal Employment Opportunity Commission (“EEOC”) has continuously updated its COVID-19 Guidance to provide employers with assistance on issues arising under the antidiscrimination laws that it enforces.  Yesterday, the EEOC added a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973.

EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act which both address employment discrimination.  The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.

Workers with disabilities stemming from COVID-19 are protected from employment discrimination and may be eligible reasonable accommodations.

As the EEOC notes, the key information includes:

  • In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
  • An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks, with no other consequences, will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
  • Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer.  Employers, however, can choose to do more than the ADA requires.
  • An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Based on this new guidance, employers need to consider each situation on a case-by-case basis and avoid assuming that simply because the employee’s medical condition and/or need for an accommodation is caused by the COVID-19 virus that it falls outside the scope of the ADA or the Rehabilitation Act.  Please do not hesitate to contact us if you need specific guidance on a particular situation.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent EEOC technical assistance or any other labor or employment issue involving your business, please contact us at any time.

Update on OSHA’s Mandatory Vaccine Rule: What Should Employers Do?

By Sally A. Piefer

November 23, 2021

As we previously reported, on November 4th, OSHA released its emergency temporary standard (“ETS”) which requires employers with 100 or more employees to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

The ETS gave employers until December 5, 2021 to do the following:

  • Develop a written vaccination and/or testing policy.
  • Determine which employees are vaccinated and collect documentation from employees who are vaccinated.
  • Develop educational materials to provide to employees covering (i) requirements of the ETS and its workplace policies; (ii) a copy of the CDC’s Key Things to Know About COVID-19 Vaccines; (iii) information prohibiting retaliation and discrimination; and (iv) information discussing criminal penalties for intentionally providing false information or documentation.

The testing and masking requirements were set to be implemented on January 4, 2022.

Almost immediately, a number of lawsuits were filed by employer groups across the nation seeking to invalidate the ETS, and shortly thereafter a number of labor unions and employee groups began filing similar lawsuits in employee friendly jurisdictions. All of those petitions have been consolidated in and will be decided by the Sixth Circuit Court of Appeals. Before the Sixth Circuit assumed jurisdiction of the cases, the Fifth Circuit Court of Appeals, a notably employer-friendly jurisdiction (or court), granted a Motion to Stay Enforcement of the ETS, finding the ETS overbroad. Several days later, OSHA posted on its website that it was suspending enforcement of the ETS “pending further developments in the litigation.”

This morning, the Biden Administration filed an Emergency Motion asking the Sixth Circuit to Dissolve the Stay issued by the Fifth Circuit. While it is still too soon to speculate how the Sixth Circuit will rule in response to the current Motion, many clients are asking what they should do since the ETS appears to be in legal limbo.

What should employers do while the ETS is in limbo? Even though the ETS has presently been paused, employers are encouraged to continue with their efforts to implement the ETS in the event the Sixth Circuit lifts the Stay. In such event, it is presently unclear how quickly OSHA may try to enforce the December 5 deadline. In addition, it would be wise for employers to keep employees informed about the process so that if the ETS is enforced, an employer can quickly move to get into compliance.

Employers should also be aware that the current proceedings in the Sixth Circuit do not impact the Executive Order 14042 mandating vaccines for certain covered government contractors and subcontractors, the vaccine mandate from the Centers for Medicare & Medicaid Services (CMS) for healthcare employers, or any state or local vaccination mandate or testing requirements.

If you have questions about this new development or about your obligations under any vaccine mandate or testing requirements, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new developments and how they will impact your business.

 

 

 

LINDNER & MARSACK, S.C., ANNOUNCES 2021 SUPER LAWYER AND BEST LAWYER DESIGNATIONS

Lindner & Marsack, S.C., today announced four attorneys acknowledged by Super Lawyers magazine. Honorees include Douglas Feldman, Gary Marsack, Daniel Pedriana and Oyvind Wistrom. Feldman and Wistrom were also named as Best Lawyers by U.S. News & World Report, along with Daniel Finerty and Jonathan Swain.

“While this recognition rightly highlights the accomplishments of several individual attorneys, it also is a testament to the dedication and quality of work provided by our entire team as we help employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” said Wistrom, President of Lindner & Marsack.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Attorneys are selected using a rigorous, multi-phase rating process in which peer nominations and evaluations are combined with third party research. The objective of the program is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Similarly, Best Lawyers rankings are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

“First and foremost, we do what we do to advance the interests and success of our clients,” concluded Wistrom. “That said, it’s still an honor to see that work acknowledged and honored with the recognition of our peers and these industry-leading publications.”

OSHA’s Mandatory Vaccine Rule Paused

By Sally A. Piefer

Last week, OSHA released its mandatory vaccine emergency temporary standard (ETS), which would require employers with 100 or more employees to implement a mandatory vaccine requirement for their workers, or alternatively to give employees the choice between receiving the COVID-19 vaccine or being subject to mandatory weekly testing.

As we anticipated, a number of lawsuits were filed across the nation seeking to invalidate the ETS. One of those lawsuits was filed in the Fifth Circuit Court of Appeals, which has jurisdiction over Louisiana, Mississippi and Texas. As you might recall, the Fifth Circuit was the location where the white-collar exemption rule was litigated several years back, and has been historically known as an employer-friendly location for challenges to earlier OSHA ETS.

On Saturday, the Court granted a Motion to Stay Enforcement of the ETS, pending a decision from the Court. OSHA has until 5:00 p.m. today (Monday) to respond to the request for a permanent injunction, and the petitioners have until 5:00 p.m. on Tuesday to file a reply.

What does this mean for employers? Technically, because the Fifth Circuit only has jurisdiction over the states identified, the ETS has been temporarily halted in those states. However, similar lawsuits have been filed across the country – including several which have jurisdiction over Wisconsin. The Wisconsin Institute for Law & Liberty (WILL) challenged the OSHA ETS last week and similarly asked for the court to issue an emergency motion. In that case, OSHA has until November 12, 2021 to respond. The State of Indiana also filed a lawsuit and similarly asked for a stay, but to date no response deadline has been set in that case. Similar lawsuits are pending in the Sixth Circuit (Kentucky, Michigan, Ohio & Tennessee), the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota & South Dakota) and the Eleventh Circuit (Alabama, Florida & Georgia)

If you have questions about this new development, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about new developments in the cases being litigated and how they will impact your business.

OSHA ISSUES EMERGENCY TEMPORARY STANDARD ON VACCINATION.

By Tyler J. Hall

On Thursday, November 4, 2021, the Biden administration, officially announced additional steps it is taking to battle the COVID-19 pandemic, and it starts with vaccinating more American workers. The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced the new emergency temporary standard (“ETS”) “to protect more than 84 million workers from the spread of the coronavirus on the job.”

Under this new temporary standard, covered employers must develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work. Covered employers must provide up to 4 hours paid time off for workers to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects of each vaccine dose. An employer must provide information in a language and at a literacy level its employees will understand.

“Acceptable proof of vaccination status” includes: (i) record of immunization from a health care provider or pharmacy; (ii) a copy of the COVID-19 Vaccination Record Card; (iii) medical records documenting the vaccination; (iv) immunization records from a public health, state, or tribal immunization information system; or a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s). A signed and dated employee attestation is acceptable in instances when an employee is unable to produce proof of vaccination. Employees who cannot provide an acceptable form of vaccination or who won’t provide an attestation must be treated as unvaccinated. Employers must also maintain and preserve a record and roster of each employee’s vaccination status—subject of course to applicable confidentiality requirements.

The ETS covers employers with 100 or more employees. The 100 employee threshold includes all employees, regardless of location, and regardless of whether they are working remotely. While they count towards the threshold, fully remote workers and workers who work exclusively outdoors are not subject to the ETS. Employees from a staffing agency are only counted by the staffing agency, not the host employer.

Importantly, employers are not required to pay for testing or face coverings. This is designed to push more employees to get vaccinated in lieu of paying for testing. Collective bargaining agreements (CBA) may dictate who pays for testing agreements or state or local law mandates may impact whether an employer must pay for the testing and/or face coverings.

The ETS also requires employers to do the following: (1) require employees to provide prompt notice of a positive COVID-19 test or diagnosis; (2) remove COVID-19 positive employees from the workplace; (3) test non-vaccinated workers at least once every 7 days (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer); and (4) ensure unvaccinated employees wear face coverings indoors or while in a vehicle with another person for work purposes. Tests cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Employers must maintain a record of each test result provided by an employee and must prevent employees from reporting to work until a test is provided.

Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

According to OSHA, this ETS with cover two-thirds of the nation’s private-sector workforce. In the 26 states and 2 territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff. Wisconsin does not have an OSHA State Plan.  The ETS does not cover those health care employees covered by the earlier standard or federal contractors covered by the earlier executive order.  It also allows for a CBA or state/local law to place more stringent restrictions on the employers.

The ETS is effective immediately upon its publication in the Federal Register, which is scheduled for November 5, 2021. Employers must comply with most requirements within 30 days of publication. Employers must comply with testing requirements within 60 days of publication.

Another rule issued by the Centers for Medicare & Medicaid Services requires roughly 17 million health care workers to be vaccinated by the same deadline, but with no option for weekly testing in lieu of vaccination.

Employers covered by the OSHA rule can challenge it in court, and challenges are expected in the coming days. OSHA will continue to monitor the pandemic, and make changes to the ETS as necessary.

The above information provides only a summary of the highlights of the ETS. If you have questions or need assistance with policy development, please contact Attorney Tyler Hall or the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about new directives, rules, or guidance.

NEW VACCINATION OR TESTING REQUIREMENTS FOR EMPLOYERS

By: Samantha J. Wood

Yesterday, President Biden announced new COVID-19 mandates affecting private employers with 100 or more employees, federal workers and contractors, and health care facilities.

First, it was announced that the Occupational Safety and Health Administration (“OSHA”) will develop a new Emergency Temporary Standard (“ETS”), which will mandate that all employers with 100 or more employees must require their employees to become “fully vaccinated” or undergo weekly COVID-19 testing. Employers will be required to give employees paid time off to get the vaccine or to recover from any side effects of the vaccine.  OSHA plans to publish this ETS in the coming weeks and it will take effect shortly thereafter.  Employers who do not comply risk fines up to $14,000 per violation.

In addition, President Biden has issued an Executive Order that requires all federal workers and contractors to be vaccinated, with exceptions for those with religious reasons or disabilities. Federal employees and contractors will have approximately 75 days from the date of the executive order to become fully vaccinated. This new Executive Order applies to all federal contractors and any subcontractors (at any tier) and requires contractors to comply with any guidance published by the Safer Federal Workforce Task Force. New guidance related to COVID-19 is expected from this Task Force by September 24, 2021. The Executive Order applies to any new contract and the extension or renewal of an existing contract, and does not apply to grants, certain contracts or agreements with Indian Tribes, subcontracts solely for the provision of products, employees who perform work outside the United States, or to contracts (or subcontracts) whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation.

President Biden also expanded the vaccine requirements for health care workers, mandating vaccinations for health care providers that accept Medicare and Medicaid funding.

Employers should keep abreast of these changes and begin preparing for the new requirements.  We will be providing continuing updates as we learn more about the new directives.