Administration Pushes Back Implementation of EO 14042 to January 18, 2022

ACEC News / Advocacy

November 11, 2021

Administration Pushes Back Implementation of EO 14042 to January 18, 2022

By Dan Hilton

BLUF: The Safer Federal Workforce Taskforce has moved the date of implementation of EO 14042 to January 18, 2022. Further guidance is linked below.

Don’t miss Friday’s 2:00 ET webinar by labor and employment attorneys from Gibson Dunn on the OSHA ETS, the ongoing legal proceedings, and how EO 14042 factors into this. Click here to register.

EO 14042 UPDATE

As we have been expecting, the Safer Federal Workforce Taskforce has issued updated guidance for federal contractors as it relates to implementing EO 14042. That new guidance can be found here. In addition to the new guidance, updated FAQ’s have also been published, which can be found here. Some of the new areas they provide information include things such as:

• Examples of sample signage that a covered contractor can post at entrances to covered contractor workplaces providing information on safety protocols.
• Circumstances that the CDC recommends delaying vaccination for COVID-19.
• If there is any difference in guidance if the covered contractor’s work is at their office or a federal workplace.

As noted above, the updated guidance also pushes back the deadline by which a covered contractor to January 18 must be fully vaccinated. Please bear in mind the two-week period that must occur between a second shot and being considered fully vaccinated.

Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation.

Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than January 18, 2022. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

The guidance also provides information on treatment of employees that are not fully vaccinated. Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and workspaces.

OSHA ETS UPDATE

We are continuing to track the OSHA emergency temporary standard (ETS). As we have reported, that has currently been halted by the 5th circuit and other cases are also proceeding. The Department of Labor is fighting back, claiming that petitioners are premature in their suits and it’s too early to know how the ETS’ impact will be felt. The following is an update published by attorneys at the firm Bradley Arant Boult Cummings in this morning’s National Law Review.

I would encourage you to join our webinar on Friday at 2:00 ET to get the latest on this issue and your responsibilities in light of the pending litigation. Register here.

In its November 8 response (and an accompanying letter to the court), the DOL noted that it believes the petitioners’ request for a stay to be “premature,” pointing out that any harm cited by petitioners in their challenge is “months” away. The DOL also argued that the petitioners could not show that “their claimed injuries outweigh the harm of staying a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.” The brief states that “OSHA’s detailed analysis of the [ETS’s] impact shows that a stay would likely cost dozens or even hundreds of lives per day.” In contrast, challenges to the ETS argue that the administrative and financial burdens to comply with the rule are too high – under the rule employers could face fines of $13,653 per serious violation and up to $136,532 per willful or repeated violations.

The DOL’s November 8 response also argued that the stay was premature, particularly in light of the multiple challenges across the country, citing federal law (28 U.S.C. § 2112) that governs the procedure courts must follow when “multiple petitions for review of a single agency order are filed in at least two courts of appeals within ten days after issuance of the order.” Under these circumstances, the cases must be consolidated and transferred to a single circuit court, which is chosen through a lottery process. The lottery is expected to take place on November 16, 2021.

So Now What?

In the meantime, the Fifth Circuit’s stay remains in place (so the immediate deadlines are up in the air for now). Even if a court lifts the stay, the timing for employers to comply with the ETS rule will be tolled accordingly, so you’ll have a little time. It is likely the stay will remain in place while the multidistrict litigation is pending, however, you don’t want to get caught unawares if the ETS is back on. Employers should keep an eye on not only the Fifth Circuit, but whatever circuit is chosen by the lottery and continue with any plans for compliance already in motion. You should probably think about what steps you will need to take if the ETS moves forward — a policy, identifying your employees who are not vaccinated, and how you might implement a testing program — just in case you need them on short notice.

As we will hear tomorrow, there are still requirements for employers that must be implemented, regardless of the stay, and sooner than January 2022. Some of those include having your vaccination and testing policy in place, you are tracking your employee’s vaccination status and you are notifying employees of these policies.

OSHA factsheets can be found here and here. FAQ’s can be found here.

Dan Hilton is ACEC Director of Procurement Advocacy & International Affairs

All comments to blog posts will be moderated by ACEC staff.