ACEC Wins Delay in Federal Contractor Vaccination Mandate Until January 4, 2022

ACEC News / Advocacy

November 4, 2021

ACEC Wins Delay in Federal Contractor Vaccination Mandate Until January 4, 2022

By Dan Hilton

BLUF: OSHA ETS announcement pushes back the date of implementation for E.O. 14042, the federal contractor mandate. ALL vaccination mandates will begin implementation on January 4, 2022. It remains unclear if that means you need to be fully vaccinated two weeks prior or not, as currently required in the federal contractor mandate. We are seeking this clarification.

On Thursday, the Biden Administration released their long-awaited Emergency Temporary Standard (ETS), to require employers with 100 or more employees to ensure their employees are vaccinated or can produce a negative test. ACEC remains engaged in this process and will be working with business groups such as the Coalition for Workplace Safety to ensure the voice of the business community is heard. We have also been invited to meet with the White House as they brief members of the business community.

According to the Administration’s fact sheet, the deadline for workers to receive their shots will be the same for the OSHA rule and the previously-announced federal contractor vaccination requirement (E.O. 14042): January 4, 2022. This is a change for federal contractors – the Administration is aligning all mandates to begin implementation on January 4, 2022. In our letter to the White House, ACEC had previously requested that the Administration pause its implementation of E.O. 14042 and provide federal contractors with additional flexibility. We continue to recognize the importance of vaccinations but have heard from many of our member firms that these mandates are proving very challenging to navigate, and we are pleased to see the Administration is responding to our calls for flexibility.

The fact sheet also notes that OSHA will not apply its new rule to workplaces covered by the federal contractor vaccination requirement. And, both OSHA and CMS are making clear that their new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing. Importantly, “[w]hile the testing requirement for unvaccinated workers will begin after January 4th, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on December 5th.”

Also of note, employees that choose weekly testing rather than vaccination will be required to pay for testing. Specifically, the ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements, or other collectively negotiated agreements. OSHA notes that the ETS also does not prohibit the employer from paying for costs associated with testing required by the ETS. Otherwise, the agency leaves the decision regarding who pays for the testing to the employer.

• Get Their Employees Vaccinated by January 4th and Require Unvaccinated Employees to Produce a Negative Test on at Least a Weekly Basis: All covered employers must ensure that their employees have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4th. After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS lays out a wide variety of tests that comply with the standard. Given that vaccines are safe, free, and the most effective way for workers to be protected from COVID-19 transmission at work, the ETS does not require employers to provide or pay for tests. Employers may be required to pay for testing because of other laws or collective bargaining agreements. 
• Pay Employees for the Time it Takes to Get Vaccinated: All covered employers are required to provide paid time off for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working. 
• Ensure All Unvaccinated Employees are Masked: All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace. 
• Other Requirements and Compliance Date: Employers are subject to requirements for reporting and recordkeeping that are spelled out in the detailed OSHA materials available here. While the testing requirement for unvaccinated workers will begin after January 4th, employers must be in compliance with all other requirements – such as providing paid time off for employees to get vaccinated and masking for unvaccinated workers – on December 5th. The Administration is calling on all employers to step up and make these changes as quickly as possible.

Click here for the full text of the pre-published rule.

Click here for extensive FAQs.

 

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