Federal Vaccine and Testing Mandate
On September 9, President Biden announced additional steps the Administration is undertaking to combat the ongoing COVID-19 pandemic. Collectively referred to as the “Path Out of the Pandemic: COVID Action Plan,” the President outlined 6 overarching goals, with specific actions to reach each goal. One of the goals, “Vaccinating the Unvaccinated,” included several actions, two of which have a direct impact on the motorcoach industry, namely: 1) a requirement for employers with 100+ employees to ensure their workers are vaccinated; and 2) a requirement for vaccination of federal contractors. The Administration started implementing these actions immediately, as described below.
Administration’s Employer Vaccine and Testing Mandate
Rule: On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure each of their workers is fully vaccinated or produces a negative test for COVID-19 on at least a weekly basis. By “fully vaccinated” the Administration means either two doses of the Pfizer or Moderna vaccine, or one dose of the Johnson & Johnson vaccine. The OSHA rule also requires these employers to provide paid leave time for employees to obtain full vaccination, and any additional time necessary to recover, if warranted. Additionally, these employers are required to ensure all unvaccinated workers wear a face mask in the workplace. The ETS also provides guidance on acceptable tests that will comply with alternative option of producing a weekly negative test result, however the ETS does not require employers to provide or pay for such testing. The deadline for workers to obtain vaccination is January 4, 2022, which now aligns with vaccination dates for other, similar rules the Administration has issued; but, employers must comply with other ETS requirements by December 5, 2021. These Employers will also be subject to reporting and recordkeeping requirements as detailed in the rule. The Administration acknowledges that enforcement of the mandate will largely rest with employers; however, employers can face fines up to $13,653/violation and 10 times this amount for willful or repeated violations.
Procedure: The Administration issued the Employer vaccine/testing mandate as an ETS, relying on a limited OSHA authority to use expedited procedures to adopt the rule in short order, without proceeding through the typical rulemaking process of providing a review and comment period. The OSHA took similar action earlier this year by imposing a similar ETS on the healthcare industry. To use the expedited procedures, OSHA must determine employees’ health is being exposed to a “grave danger”; however, an ETS issued using this authority is limited to remaining in effect for up to six months without being subjected to the typical rulemaking process. In this case, while the ETS is in effect, OSHA is seeking comments with a comment period deadline 60-days from publication in the Federal Register (January 4, 2022). Also of note, OSHA sets minimum standards, but states can set more stringent standards – such as requiring employers to pay for testing. There are also 21 states and Puerto Rico who have OSHA-approved state plans, which requires the state to adopt comparable rules to OSHA within 30-days, to remain in compliance.
Click here for the President’s speech
Click here for White House Fact Sheet
Click here for the ETS Fact Sheet
Click here for the ETS Text
Administration’s Federal Contractor Vaccination Mandate
On September 9, 2021, the President signed Executive Order 14042, which ordered all Executive Branch departments to include in their contracts a clause requiring contractors (and subcontractors) to comply during the term of the contract with all guidance related to workplace locations published by the Safer Federal Workforce Task Force. In effect, this order imposes a COVID-19 vaccination mandate on federal contractors, as the Safer Federal Workforce Task Force is the Administration’s task force, combining the heads of key executive agencies, to develop and issue guidance to keep federal employees safe operating during the COVID-19 pandemic. On September 24, 2021, the Task Force issued guidance specific to EO 14042. Briefly, the Guidance requires of contractors and subcontractors: 1) COVID-19 vaccination of contractor employees (exceptions for legally entitled accommodation); 2) Adherence to masking and physical distancing; 3) Designation of a coordinator at the contracted workplace to ensure compliance with requirements. The Guidance also includes FAQs at the end of the document for additional clarification of its applicability. The vaccination deadline under the Guidance was originally set for December 8, 2021, but was extended to January 4, 2022, to align with the OSHA ETS for employers with 100 employees et. al. Of note, according to Sec. 5 of the E.O., the order applies to any new contract, new contract-like instrument, new solicitation for a contract, extension or renewal of an existing contract, and exercise of an existing contract option. The order does NOT apply to grant agreements.
Click here for E.O. 14042
Click here for the Task Force Guidance/FAQs