On November 4, 2021, OSHA issued its 490-page document setting out its Emergency Temporary Standard for COVID-19 Vaccination and Testing, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021). The ETS requires covered employers to develop, implement, and enforce a mandatory vaccination policy by December 5, 2021, with all covered employees vaccinated by no later than January 4, 2022. Alternatively, the ETS permits covered employers to instead adopt a policy requiring employees to either get vaccinated or elect, in lieu of vaccination, to wear a face covering at work and undergo weekly COVID-19 testing. The ETS imposes many additional safety protocols, recordkeeping, and disclosure requirements for covered employers and employees beyond mandatory vaccination and testing.
OSHA issued the long-awaited ETS requiring employers with 100 or more employees to mandate that employees either get the COVID-19 vaccine or undergo weekly COVID-19 testing. The Spencer Fane Labor and Employment Attorneys are analyzing the ETS and will be providing a more in-depth client alert shortly, in addition to hosting an educational WorkSmarts™ webinar on Wednesday, November 10 from 2:00pm-3:00pm CT. In the meantime, here are a few highlights:
The White House has released a new set of FAQs meant to provide flexibility to employers who are federal contractors and subcontractors in their efforts to satisfy the December 8, 2021 deadline for their employees to be fully vaccinated. These latest FAQs are intended to give some clarity while also grace to those contractors making good-faith efforts to reach compliance with new COVID-19 workplace safety protocols.
The U.S. Equal Employment Opportunity Commission snuck in some pre-Halloween updates to its Technical Assistance Questions and Answers for COVID-19, Title VII, and other EEO laws. In this latest round, published October 25, 2021, the agency finally gave us additional guidance on how employers should handle requests for religious-based exceptions to mandatory vaccination requirements, more commonly known as “religious accommodation requests.”
Information for Construction, Transportation, Aerospace/Defense, and Other Industries
Last Friday, October 15, 2021, marked the date on which federal agencies were required to begin incorporating a clause compelling compliance with federal COVID-19 workplace safety protocols, including a vaccination mandate for covered workers, into certain existing and new federal contracts, as detailed in guidance issued by the Safer Federal Workforce Task Force on September 24, 2021, pursuant to Executive Order 14042.
On September 8, 2021, the Office of the General Counsel to the NLRB issued a memorandum to all Regional Directors encouraging them “to continue exploring new and alternative remedies” to ensure that the victims of unfair labor practices are made whole for the losses they suffer as a result of unlawful conduct. See Memorandum GC 21-06 (Sept. 8, 2021). This is an important development for employers to monitor because it strongly suggests that the NLRB plans to seek harsher remedies for unfair labor practice violations than it has done historically.
On September 9, 2021, the Biden Administration announced a new plan to use federal regulatory powers to reduce the number of unvaccinated Americans. The thrust of the administrative initiative involves “substantially increas[ing] the number of Americans covered by vaccination requirements,” primarily through mandates that “will become dominant in the workplace.” The Administration estimates that these new mandates will affect over 80 million Americans eligible to be vaccinated but who have not yet gotten their first COVID-19 shot.
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) announced an action OSHA has not taken in 38 years: issuing an Emergency Temporary Standard (“ETS”). This ETS aims to protect “healthcare and healthcare support service workers from occupational exposure to COVID-19 in settings where people with COVID-19 are reasonably expected to be present.” The ETS does not go into effect until publication in the Federal Register, which has not yet occurred but appears imminent (OSHA has submitted the ETS to the Office of the Federal Register for publication and codification in 29 CFR 1910 Subpart U). The text of the ETS, as submitted to the Office of the Federal Register, is available here. OSHA also launched a website with resources regarding the ETS.
On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 related technical assistance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which can be found here (“WYSK”). This document was first published on March 19, 2020, and was last updated, as we noted in this previous WorkSmarts update, on December 16, 2020. Although the recent update was published without consideration of updated guidance from CDC for fully vaccinated individuals issued on May 13, 2020, it still contains valuable guidance for employers with respect to vaccines in the workplace.
On May 13, 2021, the Centers for Disease Control and Prevention (CDC) made a surprising announcement: individuals who are fully vaccinated no longer need to wear masks or maintain social distance in most indoor spaces. Individuals are considered fully vaccinated two weeks after their second dose of the Pfizer or Moderna vaccine or two weeks after a single dose of the Johnson and Johnson vaccine.