Mandatory Vaccine Guidance Issued for Federal Contractors:

A Sneak Peek of What’s to Come for Private Sector Employers?

September 2021

 

President Biden’s announcement earlier this month that private sector employers with 100 or more employees will be required to have all employees either vaccinated or tested weekly has left many employers scrambling. This is especially true for those who were making vaccinations voluntary for their workforce up until this point.  In anticipation of what’s to come, many employers are now scratching their heads and wondering:

By what date will private sector employees need to be vaccinated? 

Does the employer bear the cost of any required weekly testing for those who remain unvaccinated? 

How will the mandate be enforced and by whom?  

How is this legal?

If you’ve been asking yourself these questions, you’re not alone. Unfortunately, until OSHA issues its Emergency Temporary Standard on the subject, it is unclear what the parameters will be for the President’s vaccination mandate for private sector employers. As to timing of implementation, if history is any indication, it could be several weeks, if not months. Even then, the Emergency Rule is going to be challenged in the courts, and the possibility of a nationwide injunction seems like a distinct possibility and could delay (or even derail) the President’s mandate. 

On Friday, September 24, the Biden administration very quietly issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.  Is this a preview of what may be forthcoming for private sector employers? Possibly, and so while private sector employers await the issuance of OSHA’s Emergency Standard, it’s worth considering some of the highlights of the administration’s requirements for federal contractors:

  • The vaccination deadline for federal contractors is December 8, 2021. 

 

  • Federal contractors must designate one or more persons to implement and ensure compliance with the vaccination mandate.  These designees must monitor (at least weekly) whether the area where employees are working is considered a “high or substantial” or “low or moderate” area of community transmission (according to the CDC).  Different safety protocols will apply depending on which area you are located.  In the event there is a change from “high or substantial” to “low or moderate,” the employer must wait 2 consecutive weeks before there can be any change in applicable safety protocols. 

 

  • The applicable protocols for fully vaccinated and not fully vaccinated workers must be clearly communicated to employees and visitors, g. through postings, signage, or flyers.   

 

  • If employees are in a “high or substantial” area of transmission, they must continue to wear a mask indoors in common areas or shared spaces even if vaccinated.  The mask must be over the nose and mouth.  Social distancing is not required so long as employees are properly masked.  Some exceptions to masking apply for eating or drinking (and can maintain social distancing while eating or drinking); if an employee is alone in an enclosed office with the door closed; if a mask may get wet; or if employees are engaged in high intensity activities and wearing a mask would cause difficulty in breathing.       

 

  • If you are in a “low to moderate” area of transmission, no mask is required if you are vaccinated, and physical distancing is not required. 

 

  • Regardless of what area of transmission you are located in, if you are unvaccinated, you must maintain six feet of social distancing at all times, and wear a mask.  Even if outdoors, a mask is required if you are in crowded spaces or in close proximity to other unvaccinated people.  

 

  • Proof of vaccination must be in the form of an official document, g. your vaccination card or medical record, and that documentation must be provided to the employer.  Photos and digital scans are acceptable.  An attestation by the employee and/or an antibody test is not considered valid proof of vaccination. 

 

  • The vaccination mandate is subject to reasonable accommodations being made for individuals that cannot be vaccinated for legitimate medical or religious reasons.

 

  • Some notable observations include: (1) Unlike the private sector, there is no option for weekly negative testing in lieu of vaccination; (2) The vaccination mandate applies even if the employee works remotely; (3) The vaccination mandate does not apply to workers located outside the United States; and (4) The vaccination mandate supersedes any state or local laws or ordinances that have more relaxed protocols in place. 

 

We will continue to monitor the situation and will provide an update once OSHA’s Emergency Standard is issued.  Only then will private sector employers with more than 100 employees truly know what will be required of them. 

In the meantime, employers should begin thinking about designating personnel to be responsible for ensuring compliance with the upcoming mandate.  And, so you are not in a time crunch when the time comes, it probably makes sense to begin drafting your mandatory vaccination policy, as well as any forms that could help drive the interactive process with employees who request medical or religious accommodations. 

 

As always, it is best practice to consult with experienced employment counsel when implementing new policies and procedures.

The legislature adjourned in May and the summer has brought about a lot of fundraising activity for members who will be in full campaign mode next year. Also, 2022 will include a governor’s race with Governor Lee up for re-election and many other local elections. TTA has remained active through TruckPAC by supporting those legislators who have been supportive of the industry over the years.

Since May, several lawsuits have been filed over the “gender bathroom bill” that could result in criminal penalties for businesses that didn’t follow legislative guidance on posting signs that direct which bathrooms individuals can use. The legislation appears to be in for a serious legal challenge and at least one major Metro area prosecutor is refusing to enforce the law as passed. Also, the leaders in the House and Senate, as well as the Governor, have been struggling with how to address many developing issues that have arisen as the result of the surge of the Delta COVID virus as it relates to mandatory vaccine requirements by businesses and masking policies. House leadership is calling for a special session. Senate leadership and Governor Lee are balking and leaning toward allowing local schools and businesses to set their own rules as it pertains to vaccine and masking polices.  The Tennessee business community is very concerned about the prospect of a special session based on the possibility that the legislature will enact laws that will limit decision making by businesses to set their own polices for employees to provide a safe work environment.  If Governor Lee doesn’t call a special session, it will take two thirds of the legislature to call a special session. At this time the Senate leadership is not in agreement, so it is not likely we will have a special session. However, it is all still up in the air and if a special session is called this fall, TTA will be engaged. We are always focused on promoting legislation that is critical to the trucking industry and maintains the pro-business climate that we enjoy in Tennessee.

I look forward to seeing you at the convention in San Destin in September.  We are very fortunate to have legislators who are also members of TTA attend each year and look forward to their insight on legislative developments. I cannot emphasize how lucky we are to have Paul Bailey, Pat Marsh, and Bud Hulsey serving on the legislature. Please do not hesitate to reach out with any questions.