The Latest on President Biden’s Vaccination Mandates

As we blogged about here, on September 9, 2021, President Biden announced sweeping new vaccine requirements that will impact millions of employees across the country, including:

• A forthcoming rule that will require all business with 100 or more employees to require that employees be either fully vaccinated or tested for COVID-19 at least once a week.
• A vaccination mandate for federal government employees (with no testing alternative, although religious and medical exemptions will be permitted).
• A vaccine mandate for all federal contractors (with no testing alternative, although religious and medical exemptions will be permitted).

Here are the latest developments:

100+ employee vaccination or testing mandate.  OSHA has not issued the rule yet, which will answer key questions including who is covered, when compliance will be required, what kind of testing will suffice, and whether and how employers will need to report results.

Federal government employee vaccination mandate.  The Safer Federal Workforce Task Force (the “Task Force”) issued additional guidance on September 13, 2021, stating that:

• Federal employees must be fully vaccinated or have received a medical or religious exemption by November 22, 2021.
• Federal employees must be paid for time spent being vaccinated, and receive paid time off to address any side effects or to accompany a family member being vaccinated.
• Agencies must inquire about the vaccination status of contractors and visitors to federal buildings. Individuals who are not vaccinated must provide proof of a negative COVID-19 test from no later than three days before entry (except visitors who are visiting a federal building to receive government benefits, who are only required to follow CDC guidance regarding masking and social distancing).

Federal government contractor vaccination mandate.  The Task Force issued additional guidance as promised on September 24, 2021.  Key provisions:

• The mandate requires that federal agencies insert a clause in federal contracts stating that “covered contractor employees” must be fully vaccinated or have received a religious or medical exemption by December 8, 2021.
• The mandate must be included in contracts awarded:
  • Before October 15 where performance is ongoing at the time an extension or renewal is made or an option is exercised (although agencies are “encouraged” to insert a vaccination requirement into those contracts before the contract is extended or renewed).
  • On or after November 14 (although agencies are “encouraged” to require vaccination in contracts awarded between 10/15 and 11/14).
• The mandate is written extremely broadly, such that many contracts (and individuals working under those contracts) will be covered.  It applies:
  • To all contractors, regardless of size, who are parties to a covered contract and all subcontractors below them (except those whose sole involvement is “for the provision of products”).  (Prime contractors must include the required clause in their first-tier subcontracts, and then the first-tier subcontractors are expected to flow the clause down to lower-tier subcontractors.)
  • To most contracts, which are defined as any agreement between two parties creating legal obligations, including service and construction contracts and purchase orders (but still excluding contracts for the provision of products, as noted above).
  • To any employee working on or “in connection with” a covered contract, including people who do not do the actual work that the contractor/subcontractor was hired to do but provide human resources, billing, legal, or other administrative assistance in connection with the contract.
  • In any work location where one or more employees is working on or in connection with a covered contract, even if there is only one person working on the contract at the location (unless the employer can keep the people working on the contract completely separate from everyone else, including in common areas like a break room).  It also applies to outdoor locations.
• The mandate also requires that covered contractors ensure everyone at a covered work location comply with CDC guidance regarding masking and social distancing.  This likely will not create any issues for employers in states such as Oregon, which already have more restrictive guidelines than the CDC.
• The contractor is responsible for ensuring compliance with the mandate, including:
  • Reviewing covered employees’ vaccination documentation;
  • Reviewing and resolving religious or medical exemption requests for the vaccination and/or masking requirement;
  • Designating a person or persons to coordinate implementation of and compliance with the Task Force guidance; and
  • Posting signage with information on required safety protocols.

We will continue to keep you posted as new developments arise.