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Feds issue further guidance on Biden vaccine mandate for government contractors

the Safer Federal Workforce Task Force has issued further guidance explaining what government contractors can expect as President Biden’s government contractor vaccine mandate is implemented. Highlights of this most recent guidance include the following:

  • As explained in a previous post, the government-contractor mandate’s requirements will be imposed by way of a FAR (Federal Acquisition Regulation) to be included in covered “contracts and contract-like instruments.” The guidance defines that phrase, as follows:

Contract and contract-like instrument – has the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors,” 86 Fed. Reg. 38,816, 38,887 (July 22, 2021). If the Department of Labor issues a final rule relating to that proposed rule, this term shall have the meaning set forth in that final rule.

That proposed rule defines a contract or contract-like instrument as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing. The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute. Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications. The term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.

    • Companies may note that definition includes contracts and subcontracts, whether in writing or verbal. Likewise it applies to contracts involving “any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement,” specifically including construction.
  • The requirement will need to be passed down from contractors to all “lower-tier subcontractors.”
  • The requirement will reach not only those “covered contract employees” who work on federal workplaces but those who work in private workplaces, even if outdoors. It includes full-time and part-time workers, and it will include a joint employer principle. Covered companies will also need to impose the mandate on visitors to their workplace (at least as to masking and socially distancing). It will reach beyond the work on the contract itself to all employees who are either “themselves working on or in connection with a covered contract.”

Q17: What constitutes work performed “in connection with” a covered contract?

A: Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.

  • The requirement will mandate that the covered contractor review and confirm vaccination by way of certain documents, to include a standard official vaccine card, but not to include self-attestation by the person nor proof that the person is positive for antibodies. Proof of so-called “natural” immunity, in other words, proof that the person has already had a COVID-19 infection, is not sufficient; the person must provide proof of actual vaccination. Proof of vaccination can be displayed digitally, in other words, a photograph of a vaccine card will suffice. The guidance does not at least on its face mandate that the covered contractor retain a copy of that proof, only that the individual “show or provide” it.
  • The requirement will include a mandate that covered contract employees wear a mask and socially distance, except, in low or moderate community transmission areas, a fully-vaccinated individual will not be required to wear a mask.
  • Limited exceptions will be permitted:
    • To the extent required as a legally mandated form of accommodation (example, for religious or disability reasons).
    • When the government contracting agency determines there is an “urgent, mission-critical need” for workers before they can become fully vaccinated, in which case the vaccination mandate may be extended for such individuals up to 60 days after they begin work.
  • The requirement will mandate that each covered contractor designate a “person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.”
  • The effective date of these requirements will depend on the date of the contract or contract-like instrument.

Q12: By when must the requirements of the order be reflected in contracts?
A: Section 6 of the order lays out a phase-in of the requirements for covered contracts as follows:
• Contracts awarded prior to October 15 where performance is ongoing – the requirements must be incorporated at the point at which an option is exercised or an extension is made.
• New contracts – the requirements must be incorporated into contracts awarded on or after November 14. Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.

  • These requirements will apply in addition to the forthcoming OSHA rule that will apply to companies of 100 or more. In other words, employers who are subject to the government-contractor mandate will have to comply with these requirements, employers who are subject to the 100-employee/OSHA rule will have to comply with that rule, and employers who are subject to both these government-contractor requirements and the 100-employee/OSHA rule will somehow have to comply with both, or at least that appears to be what the guidance is suggesting.

Q20: Can a covered contractor comply with workplace safety requirements from the Occupational Safety and Health Administration, including pursuant to any current or forthcoming Emergency Temporary Standard related to COVID-19, instead of the requirements of this Guidance?
A: No. Covered contractors must comply with the requirements set forth in this Guidance regardless of whether they are subject to other workplace safety standards.

  • Once a contractor becomes subject to these requirements, they will be subject to any new or changed requirements issued by the Safer Federal Workplace Task Force, even during mid-term of a covered contract.
  • These requirements will apply even if inconsistent with state or local laws to the contrary.

Q19: Does this clause apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in this Guidance?

A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in this Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under this Guidance.

 

OSHA issues updated FAQ confirming cloth face coverings and general masks worn re coronavirus are not PPE

OSHA issued an updated FAQ re cloth face coverings and the kind of masks commonly worn regarding coronavirus (called “surgical” masks by OSHA, as distinguished from what it calls “respirators (e.g., filtering face pieces)”).

OSHA explains that cloth face coverings are worn, not to protect the wearer, but to reduce the expression of virus by the wearer, what OSHA calls “source control.”

Face coverings are intended to prevent wearers who have Coronavirus Disease 2019 (COVID-19) without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

As such, OSHA says, cloth face coverings are not PPE and need not be provided by or paid for by an employer. Likewise surgical masks and even respirators, when worn for source control, are not PPE and need not be provided by or paid for by an employer.

Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.

Although not required by OSHA, “OSHA generally recommends that employers encourage workers to wear face coverings at work.” In addition, even when cloth face coverings are encouraged, OSHA also recommends that employers encourage social distancing in the workplace. (Note: Employers should remember OSHA is only one source of applicable law. Employers need to comply with all applicable laws, some of which, especially at the state and local level, do mandate social distancing, de-densifying, and even cloth face coverings.)

OSHA’s FAQ reminds employers that some companies must provide masks and even respirators as PPE, for example healthcare employers whose workers are known to be exposed to coronavirus. Likewise OSHA reminds all employers they face a General Duty citation if they fail to take feasible and effective means to eliminate a recognized hazard in the workplace; OSHA’s FAQ suggests it may rely upon evidence to include the failure of an employer to encourage the use of cloth face coverings or surgical masks and the practice of social distancing.

UPDATE: November 18, 2020, OSHA issued a statement confirming again that cloth face coverings are not PPE within the meaning of OSHA requirements (though employers may require them in their workplaces).

OSHA believes some employers have a duty to investigate work-relatedness of coronavirus cases

If an employee tests positive, does an employer have an obligation to investigate whether it is “work-related”? OSHA thinks so, now, but investigating and determining “work-relatedness” may not be as easy — or as lawful — as OSHA believes.

OSHA issued a revised enforcement guidance that now imposes on some employers a duty to investigate the possible “work-relatedness” of employee coronavirus cases and, if confirmed, to comply with OSHA’s recordkeeping requirements regarding work-related injuries and illnesses.

Employers may wish to review this summary of the revised guidance by SHRM.

To determine the work-relatedness of an employee’s having coronavirus, the employer should conduct an investigation, which may be as simple as talking to the individual. OSHA suggests that an employer’s investigation should include:

(1) (asking) the employee how he believes he contracted the COVID-19 illness;

(2) while respecting employee privacy, discuss(ing) with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and

(3) review(ing) the employee’s work environment for potential SARS-CoV-2 exposure.

Unfortunately this may not be as simple as OSHA makes it sound. Employers are reminded of the EEOC and other legal constraints on medical inquiries. Employers should consult with legal counsel as they attempt to thread the needle between the conflicting requirements of OSHA and the EEOC.

OSHA believes a case of coronavirus may be considered work-related if “(f)or instance:

COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

OSHA’s recordkeeping requirements may not apply to employers with fewer than 10 workers or with workplaces recognized by OSHA as low hazard.

Coronavirus-safety lawsuits against employers begin

Employees have begun filing lawsuits against their employers alleging inadequate safety measures in place to protect against coronavirus.

So far, two lawsuits have reached an initial-decision stage:

  1. Rural Community Workers Alliance v. Smithfield Foods, Inc., case no. 5:20-CV-06063-DGK. See Order Granting Defendant’s Motion to Dismiss dated 5-5-2020.
  2. Massey v. McDonald’s, case no. 2020CH04247. See initial complaint, which news reports advise was sustained against a motion to dismiss, by way of a verbal order from the bench that has not (yet?) been reduced to writing and that, instead, set the matter for a forthwith hearing regarding a possible preliminary injunction.

The McDonald’s complaint alleges that the company has taken inadequate safety precautions to protect against coronavirus and asserts claims that, as a result, its restaurant operations at the locations identified in the complaint constitute “public nuisances” that endanger the public, including not only customers but the plaintiff (and requested class-action members) employees and, further constitute the tort of negligence against the plaintiffs (and requested class-action members) who are employees. The complaint further includes a negligence claim against individual store owners.

While the McDonald’s complaint has reportedly been set for a preliminary injunction hearing, the plaintiffs may take little comfort from the Smithfield Foods case, which was also set for such a hearing, but then dismissed.

Employers can expect to see more of such lawsuits filed as the country struggles through the coronavirus crisis, but it seems the court in the Smithfield Foods case reached the right conclusion. Coronavirus is a national crisis. It is not a risk specific to any given workplace. COVID-19 is a novel virus. Not just companies, and individuals, but the government itself is struggling to determine what proper safety measures are in the workplace.

Most importantly in these cases, workplace safety is within the exclusive jurisdiction of OSHA. Congress created extensive regulatory procedures and protections within the OSHA administrative framework. One such right is not a private right of action by workers who wish to challenge workplace safety measures. Employees must pursue their concerns through the OSHA process, not by filing private lawsuits in court.

To the extent plaintiffs try to cloak their negligence claims as “public nuisance” claims, the same reasoning applies, as the court noted in the Smithfield Farms case.

The parties agree that the Plant cannot be a public nuisance simply by virtue of the fact that it is a meat-processing plant during a global pandemic. Moreover, in this case, Smithfield has implemented substantial health and safety measures to protect Plant workers, and no employees of the Plant have been diagnosed with COVID-19. While Plaintiffs argue that Smithfield could do more to protect its workers, that is not the issue before this Court. The issue is whether the Plant, as it is currently operating, constitutes an offense against the public order. Because of the significant measures Smithfield has implemented to combat the disease and the lack of COVID-19 at the facility, the Plant cannot be said to violate the public’s right to health and safety.

The court there concluded its analysis by emphasizing that it was sympathetic to the plaintiffs’ concerns, but that those concerns should be raised to the appropriate workplace safety agencies, primarily OSHA.

Plaintiffs are naturally concerned for their health and the health of their community in these unprecedented times. The Court takes their concern seriously. Nevertheless, the Court cannot ignore the USDA’s and OSHA’s authority over compliance with the Joint Guidance or the significant steps Smithfield has taken to reduce the risk of a COVID-19 outbreak at the Plant.

OSHA publishes guidance for employers on how to establish a safe workplace in the coronavirus pandemic

As essential industries struggle to stay open and as more and more companies look to reopen, OSHA has published a “Guidance for Preparing Workplaces for Coronavirus.” The guidance provides specific recommendations for workplace structuring, cleaning, protective equipment, etc., broken down for different kinds of jobs, based on their risk of exposure to coronavirus. Employers will want to review the guidance with their safety professionals. 

Employers are reminded to check any state and local requirements as well for their workplaces. For example, Cal-OSHA has published its own requirements. Colorado has published a page containing its extensive suggestions; Pinnacol has offered its own suggestions here.

OSHA’s final recordkeeping rule confirms, among other things, post-accident drug testing does not constitute retaliation

OHSA issued a final rule regarding recordkeeping, which, among other things, confirms its position that, contrary to a 2016 Obama-era rule, post-accident drug testing does not constitute prohibited retaliation.

In response to concerns about the application of the 2016 final rule to employee drug testing and incident- based incentive programs, OSHA notes that the employee protection provisions promulgated by that final rule and codified at 29 CFR 1904.35 neither ban drug testing employees involved in workplace injury or illnesses, nor prohibit incident-based incentive programs. Rather, §1904.35(b)(1)(iv) merely prohibits employers from implementing these programs to penalize workers ‘‘for reporting a work- related injury or illness.’’ Id. (emphasis added). … To the extent the 2016 preamble suggested otherwise, it has been superseded. While not the focus of this particular rulemaking, that memorandum accurately reflects OSHA’s position and addresses the commenters’ concerns.

Source: “Tracking of Workplace Injuries and Illnesses,” 84 Fed. Reg. 380 (1/25/19)

Fifth Circuit affirms OSHA’s Controlling Employer doctrine

Applying Chevron deference, the Fifth Circuit has affirmed OSHA’s controversial Controlling Employer doctrine, which allows OSHA “to issue citations to controlling employers at multi-employer worksites for violations of the Act’s standards,” even if none of the controlling employer’s workers were exposed.

Source: Acosta v. Hensel Phelps Construction Company (5th Cir. 11/16/18). 

OSHA confirms that employers can require post-incident drug tests and can also offer safety incentives

Clarifying what had been a controversial approach, OSHA issued a memo that clarifies its position regarding two common employer policies, confirming that neither constitutes unlawful retaliation:

1. Post-accident drug testing will not generally violate OSHA’s anti-retaliation provisions.

Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.

In addition, OSHA clarified, other common forms of drug testing also do not generally violate OSHA’s anti-retaliation provisions.

In addition, most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv). Examples of permissible drug testing include:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

2. Common safety incentive programs also do not violate OSHA’s anti-retaliation provisions.

OSHA’s Memorandum reverses course on a 2016 approach in which OSHA had announced an intent to find that such programs might violate the anti-retaliation provisions of OSHA if they had the effect of disincentivizing employees from reporting injuries and accidents at work. OSHA’s Memorandum explains it, now, believes such programs can be effective tools for enhancing, not reducing, workplace safety.

The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.

Source: OSHA Memorandum (10/11/18).