Tag Archives: vaccine mandate

Federal Contractors’ Alert: What We Know and Still Don’t Know About Biden’s Vaccination Mandate

Contributed by Heather Bailey and Jeff Risch, September 27, 2021

Filling syringe with medicine from vial, closeup

On September 24, 2021, as instructed by President Biden’s Executive Order 14042, the Safer Federal Workforce Task Force (“Task Force”) published its COVID-⁠19 Workplace Safety for Federal Contractors Guidance. We first updated you on this Executive Order in our blog published on September 13: Who is a Federal Contractor for Purposes of the Biden Vaccine Mandate? But does the Task Force’s new guidance actually assist us in determining what federal contractors are covered under the Executive Order? Unfortunately, certainty as to who is covered by the Executive Order remains clear as mud. However, the Task Force did make the following clear for contractors with its new guidance:

  1. The guidance and the Executive Order’s Section 5 defines what contracts fall under the mandate. The term “services” is not defined in the Executive Order or in the Task Force’s guidance and the definitions remain broad. This is where many businesses will find themselves left in the dark to navigate this edict. Of course, Section 5 also includes specific exclusions, which are fairly limited. For example, there is no mention of banks that serve as a depository of Federal funds, or are an issuing and paying agent for U.S. savings bonds and notes. In light of the broad definitions adopted by the Executive Order and guidance – such banks could fall under this mandate (but, we are not 100% certain by the definitions given to us). Moreover, we are also not certain that FDIC status alone is a sufficient trigger as this is not discussed in the guidance either.
  2. Those federal contractors who are covered must have a COVID-19 safety plan in place at their workplaces. This includes mask requirements (and face shields alone do not count) as well as written social distancing rules not only for employees, but visitors as well. The safety plan must be properly published and communicated. The safety plan must also have a designated person or team of persons in charge of the plan.
  3. COVID-19 vaccination is required by December 8, 2021 for covered contractor employees (including employees of covered contractors who are not themselves working on or in connection with a covered contract). Contractors are required to get proof of vaccination from all covered employees.
  4. Reasonable accommodations must be considered for medical reasons or due to religious objections – and if accommodations are provided, there is nothing preventing the employer from implementing weekly testing. Indeed, wouldn’t an employer implement such testing as part of its COVID-19 mitigation plan?
  5. Remote contract workers must be vaccinated too since they are covered contractor employees, but the masking and social distancing requirements to do not come into play at the employee’s residence since it’s not a covered workplace.
  6. Federal agencies are encouraged to insert the vaccine mandates included in the Executive Order in all federal contracts, including those under Section 5’s list of excluded contracts. So businesses better be on the lookout for any contractual obligations inserted in federal contracts or subcontracts on this issue going forward, and should not assume the mandate does not apply to them.

As noted above, masks and physical distancing are required and all individuals in the covered workplace must comply with CDC guidance for masking and physical distancing. If required to wear a mask, it must be worn in all common areas and shared workspaces. Similar with vaccines, employers must consider exemptions to the mask mandate for disability reasons or religious beliefs. As for wearing a mask, it differentiates for vaccinated vs. unvaccinated:

  • Fully vaccinated must wear a mask in indoor settings, unless they are in an area of low or moderate community transmission, then they do not have to wear a mask. They do not have to physical distance at all regardless of the level of transmission.
  • Unvaccinated must wear a mask indoors and in certain outdoor settings, regardless of the level of community transmission. “To the extent practicable” they must maintain a distance of at least six feet from others at all times. The outdoor setting where masks are required is for outdoor activities that involve “sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance.”

Community transmission levels can be found on the CDC website and must be checked at least weekly to determine proper workplace safety protocols.

Lastly, the Task Force finally provided additional guidance with FAQs. Notably, those employees who had COVID-19 previously are still required to be vaccinated. An antibody test cannot replace getting vaccinated. Also, multi-floor establishments and the ability to keep contract employees completely separate is an option so non-contract employees would be excluded from the vaccination mandate. And, yes, this guidance applies to small businesses as well since coverage under the federal contractor mandate is not dependent on the size of the employer.

There is likely more to come. Before entering into any new federal contract, or an extension of any existing contract, employers should take a look to see if any of these requirements have been added to the contract. Finally, seek competent legal counsel to opine on whether the mandate applies to your particular business or operation.

Wage and Hour Questions on the Vaccine Mandate: Pitfalls for Illinois Employers Covered by the Executive Order   

Contributed by Michael Wong and Sara Zorich, September 16, 2021

Medicine doctor and vaccine dose syringe

On August 23rd Governor Pritzker issued Executive Order 2021-20 requiring  health care workers, school personnel, higher education personnel and students, and state-employees and contractors who work at state-owned or operated congregate facilities to get their first dose of a two-dose COVID-19 vaccine series, or a single-dose COVID-19 vaccine, within 10 days and be fully vaccinated within 30 days, subject to applicable medical and religious exemptions under federal and state law.

Two weeks later on September 3rd Governor Pritzker issued Executive Orders 2021-22 extending the time to get the first dose of a two-dose vaccine to September 19, 2021, and the second dose of a two-dose COVID-19 vaccine series within 30 days following administration of their first dose in a two-dose vaccination series (October 19, 2021).

Following the issuance of Executive Order 2021-22, the Illinois Department of Public Health (IDPH) issued guidance on the Executive Order. This guidance clarified that even if an employee did not have a medical or religious exemption, that they could alternatively choose to be tested for COVID-19 on a weekly basis rather than be vaccinated, unless their employer implements a stricter requirement that they be vaccinated, subject only to the applicable medical and religious exemptions.

REMEMBER: Executive Order 2021-20 only covers health care workers, school personnel, higher education personnel and students, and state-employees, and contractors who work at state-owned or operated congregate facilities.

If you have workers subject to Executive Order 2021-20, there are a lot of questions and potential pitfalls ahead, especially in the wage and hour realm. The following are common questions that should be asked not only about the Illinois Governor’s vaccine mandate, but the President’s proposed OSHA rule on vaccines and other state vaccine mandates.

Do employers need to pay for the time employees spend getting vaccinated? The answer depends on whether the employer is simply complying with the Executive Order or taking it a step farther by requiring employees get the COVID-19 vaccine. 

The Illinois Dept. of Labor (IDOL) guidance provides that if an employer requires employees to get vaccinated, the time spent obtaining the vaccination is likely compensable – even if it is non-working time. However, for optional vaccination programs, the IDOL states employees that choose to obtain the vaccine voluntarily should be allowed to utilize sick leave, vacation time or other paid time off. Based on the IDPH Guidance, there is an indication that compliance with the Executive Order is not considered a “mandatory vaccination program” for an employer, unless the employer imposes more stringent requirements. As such, unless an employer makes vaccinations mandatory, the current IDOL guidance indicates employers are not required to pay an employee for the time spent getting vaccinated.

The importance of local laws are highlighted here though due to Cook County Ordinance Sec. 42-122. Employers with a principle place of business in Cook County (which includes Chicago) must comply with Cook County Ordinance Sec. 42-122, which went into effect on July 1, 2021. The Ordinance provides that employers that have a primary business location in Cook County and who require their employees get the vaccine must compensate their employees for up to 4 hours of paid time per dose at the employee’s regular rate of pay if the employee chooses to get the vaccine during their work shift.  Further, regardless of whether a vaccination is voluntarily sought by an employee or required by an employer, employers cannot require that an employee get vaccinated only during non-shift hours and shall not take any adverse action against any employee for taking time during a shift to get vaccinated.

What about travel time and expenses to get the COVID-19 vaccine?  If an employer imposes a mandatory vaccine requirement, under federal and Illinois state law, employers would likely need to reimburse the travel time and expenses for the employee to get vaccinated.  Under the FLSA, the time spent traveling to undergo “special tests” required by the job (e.g. physical examinations, fingerprinting and drug testing) is compensable time. As such, if you put into place a mandatory vaccination policy, we would recommend employees report the time it took them to get to/from the vaccination site and such time would be compensable work time. In terms of travel expenses (e.g. mileage and tolls), Illinois law requires employers reimburse expenses that are required of the employee in the discharge of employment duties and inure to the primary benefit of the employer. Thus, it is recommended that employers also reimburse for the employee’s mileage to/from the vaccination site.

Is there a difference between Vaccinations vs. Testing? – YES! While the Executive Order indicates that vaccinations are optional, weekly testing if an employee is unvaccinated is not optional. As a result, under the FLSA and IDOL guidance, COVID-19 testing for covered employees under the Executive Order would likely be considered compensable time. Additionally, even though the IDPH guidance states that the Executive Order does not require employers to pay for testing, this does not take into consideration the FLSA and state laws that require employers to pay for the cost of business expenses, including medical tests that are required.

The vaccine mandate landscape is starting to heat up and will be continuously changing in the near  future. Employers are waiting on more information and guidance from the President’s proposed OSHA’s rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Illinois’ Executive Order vaccine mandate is a good primer on issues that employers throughout the United States will need to consider once the proposed OSHA rule is issued and in dealing with any state or local vaccine mandate. As these are new and complicated issues, employers should speak with experienced labor counsel in addressing vaccine mandates prior to implementing any policy requiring vaccinations.

Who is a Federal Contractor for Purposes of the Biden Vaccine Mandate?

Contributed by John R. Hayes, September 13, 2021

doctor hand wears medical glove holding syringe and vial bottle with covid 19 corona virus vaccine

On September 9, 2021 President Biden announced sweeping new vaccine mandates for federal employees, federal contractors, and an upcoming OSHA Emergency Temporary Standard Rule for companies with more than 100 employees. In light of this, already many employers are asking the question, “Am I a federal contractor subject to the vaccine mandate?” While the Executive Order regarding federal contractors is brand new, and we are awaiting more clarification from the Safer Federal Workforce Taskforce (Task Force), there is some language contained in the Order that can give employers an early roadmap.  The Executive Order applies to federal contracts that are:

  • Either a contract or contract-like instrument;
  • Entered into, extended, renewed, or has an option exercised on or after October 15, 2021; 
  • For any of the following:
    • services, construction, or leasehold interest in a property;
    • services covered by the Service Contract Labor Standards (formerly known as the Service Contracts Act);
    • concessions; and
    • work relating to federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The Executive Order explicitly excludes:

  • Federal grants;
  • Contracts with Indian Tribes;
  • Employees who perform work outside of the United States;
  • Contracts equal or less than the simplified acquisition threshold (generally $250,000); and
  • Subcontracts solely for the provision of products.

However, the Executive Order leaves several unanswered questions that will hopefully be answered by the Task Force, which must issue its guidance by September 24, 2021.  For example, it is not clear if the mandate will be for onsite contractors only, but initially it appears to also cover employees working at the contractor’s facility.  It specifically states it applies to “workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  Thus, the Executive Order is phrased to apply to any workplace locations where contract work is performed, rather than to employees performing the work.  Also, it appears to eliminate the option for federal contractor employees, provided for in the July 29, 2021 federal employee vaccination mandate, that allowed those workers to choose to wear a mask, socially distance, and subject themselves to regular testing instead of getting vaccinated.

As with all vaccine mandates, there will likely be exceptions for disabilities or sincerely held religious beliefs.  Each employer will have to make individual determinations regarding these exemptions. 

Some general takeaways at this time are that if you are a business operating under an existing federal contract that is not being renewed or has options exercised, you are not subject to the Executive Order.  Similarly, if your contract is for less than $250,000 you are likely not subject to the mandate.  However, it appears as if it is not limited just to onsite contractors (such as those in the construction industry), and so the vaccine mandate could expand to many more businesses (such as banks) that are operating under a federal contract yet not providing onsite work to federal agencies. 

Of course, all this is very preliminary given the lack of guidance from the Task Force. But for now, employers can at least get an idea of whether or not they are a contractor for purposes of the Executive Order.  While the specific details of the mandate are still to come, businesses who have new or renewed federal contracts (greater than $250,000) coming up can expect some sort of vaccine mandate on at least part of its workforce, and should begin to plan accordingly. We will be monitoring this situation closely and will provide updates as they occur.