by Bob Dunlevey of Taft/Law
On July 29, President Biden announced an intended Executive Order mandating that businesses having federal contracts (government contractors) require of their employees working at on-site locations to prove they are vaccinated against COVID-19 or regularly undergo testing. See the White House Fact Sheet which includes the following pronouncement:
“… Every federal government employee and on-site contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physical distance from all other employees and visitors, comply with a weekly or twice weekly screening test requirement, and be subject to restrictions on official travel.
Fully vaccinated federal employees and on-site contractors do not need to physically distance or participate in weekly screening testing and are not subject to … restrictions on travel. In areas of high or substantial transmission, they need to wear a mask in public, indoor settings, in federal buildings” [but not in low or moderate transmission areas.]
The Executive Order will also apply to all federal employees. The details on how this will be implemented are yet to be determined, but this Executive Order will present significant challenges to government contractors – especially those having employees resisting the vaccine. How will employees confirm vaccination status, who will pay for the testing, and will federal disability laws restrict the President’s mandates? What about collective bargaining agreements which may not permit mandatory vaccinations or frequent testing?
Approximately 25% of all employees work for federal contractors in a variety of industries, including manufacturing, construction, and technology, and the federal government employs approximately 4 million individuals as well – including 2 million in civilian work. This Executive Order may very well impact 1/3rd of the U.S. workforce.
The Executive Order will also:
Direct the Department of Defense to look into how and when COVID-19 vaccinations can be added to the list of required vaccinations for members of the military;
Expand paid leave for small and medium sized businesses covered by the American Rescue Plan which will be reimbursed for offering their employees paid leave to get their family members vaccinated;
Call on state and local governments to offer $100 for individuals to get the vaccination;
Call on school districts nationwide to host at least one pop-up vaccination clinic in the weeks to come.
In addition to federal mandates, state and local governments are changing their COVID-19 guidelines due to the Delta variant. These changes present challenges for all employers, not just government contractor employers. For example, the CDC is now recommending that in geographic locations where COVID-19 is prevalent, employees should wear a mask indoor even if vaccinated. 46% of U.S. counties have been identified by the CDC as having a “high” level of community transmissions. See here. California already requires state and healthcare workers to show proof of vaccination or be tested regularly.
Obviously, with all of these COVID-19 issues moving so quickly, employers must pay close attention to developments and stand ready to make employment policy changes rapidly. For further information, contact Bob Dunlevey, Board Certified Specialist in Labor and Employment Law, at (937) 641-1743 at Taft/Law.
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