By: Richard J. Omata, Brett A. Elliott, and Maria Y. Hodgins

This client alert is updated to include newly released OSHA requirements (and the Fifth Circuit’s stay of those requirements) and CMS vaccine requirements for healthcare providers.  

The Federal Contractor Vaccine Mandate and Safety Requirements

On September 9, 2021, President Biden issued Executive Order 14042 (“Mandate”) mandating that contract and contract-like instruments covered by the order include a contract clause requiring federal contractors and their subcontractors at any tier to comply with all guidance published by the Safer Federal Workforce Task Force. On September 24, the Task Force published Guidance specifying that all “covered employees” must be fully vaccinated against COVID-19 no later than December 8, 2021 or the first day of performance for any contract that starts at a later date, unless the employee is legally entitled to an accommodation because of a disability or sincerely held religious belief.  Employees are not considered to be fully vaccinated until two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine.

1. Contracts Covered by the Federal Mandate

The Mandate covers new or renewed contracts and contract-like instruments:

• Procurement contracts for services, construction, or a leasehold interest in real property;
• Contracts for services covered under the Service Contract Act;
• Concessions contracts; and
• Contracts with the federal government in connection with federal property or lands, and federal contracts related to offering services for federal employees, their dependents, or the general public.

2. Employees Covered by the Federal Mandate

The Mandate applies to full-time and part-time employees working on or in connection with a covered contract, and all employees that share the same workplaces with such employees or come into contact with them as part of their employment. The Mandate includes remote workers working on a covered contract. Work “in connection with” a covered contract includes functions such as billing, human resources, and performing other activities related to the contract.

3. Date of Compliance

For contracts awarded before October 15, 2021, where performance is ongoing, the mandatory vaccination clause will be incorporated when there is an option exercised or extension made. For new contracts, the clause must be incorporated on or after November 14, 2021. For contracts made from October 15, 2021 to November 14, 2021, the solicitation will include the requirements, and the Guidance encourages agencies to include a mandatory vaccination 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.

Agencies have discretion to approve exemptions for certain employees where there is “an urgent, mission-critical need” for an employee to begin work before being fully vaccinated, in which case the unvaccinated employee must be fully vaccinated within 60 days of beginning work on the covered contract or at the covered workplace.

Once the mandatory vaccination clause is incorporated, contractors are expected to comply immediately with the Guidance; there is no grace period. Because it takes weeks to become fully vaccinated, contractors must plan ahead to ensure that all covered contractor employees are fully vaccinated by December 8, 2021, or 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 mandatory vaccination clause has been incorporated into the covered contract.

4. Other Safety Protocols Required by Mandate

In addition to the vaccine requirement, the Mandate requires that covered contractors ensure that all individuals at covered workplaces, including all visitors, comply with CDC guidelines for masking and physical distancing. Covered contractors must also designate a COVID-19 safety coordinator to coordinate implementation and compliance with the Mandate.

5. Ensuring Compliance

Covered contractors are responsible for determining employees’ vaccination status and must review a copy of the employees’ vaccination card or other approved proof of vaccination. Acceptable proof of vaccination includes medical records or state or public health immunization records. Self-attestations of vaccination are not sufficient. Covered contractors also are charged with confirming the validity of an employee’s requested religious or medical exemption and determining whether a reasonable accommodation can be made for the employee.

OSHA Rule

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (“OSHA Rule”) requiring that employees of private employers with more than 100 employees companywide be fully vaccinated against COVID-19 by January 4, 2022. Unlike the Guidance for federal contractors, the OSHA Rule requires, as an alternative to becoming vaccinated, that employees undergo at least weekly COVID-19 testing. The OSHA Rule also requires that unvaccinated employees wear a mask while at work and that employers pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from any side effects. Companies who fail to comply with the OSHA Rule could face penalties up to $14,000 per violation.

On November 12, the U.S. Court of Appeals for the Fifth Circuit reaffirmed and extended its initial stay of the OSHA Rule pending further judicial review of motions for a permanent injunction and ordered that OSHA take no steps to implement or enforce the OSHA Rule until further court order. The Fifth Circuit’s ruling applies nationwide.

On November 16, the Judicial Panel of Multidistrict Litigation consolidated all petitions for review of the OSHA Rule filed in all federal circuit courts of appeals before the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit will determine whether to extend, modify or revoke the Fifth Circuit’s stay.

CMS Vaccine Requirements

On November 4, 2021, the Centers for Medicare & Medicaid Services (“CMS”) issued an emergency regulation requiring that all employees at Medicare and Medicaid-participating healthcare facilities be vaccinated by January 4, 2022 with no alternative weekly testing requirement. The regulation requires that covered facilities establish a policy ensuring all eligible employees receive the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 5, 2021. The regulation covers only those remote employees who at any point physically enter a covered facility to interact with staff, patients, and clients. Fully remote employees are not covered.

Covered facilities that fail to comply with these requirements risk losing Medicare and Medicaid funding. The regulation allows for exemptions based on medical conditions or a sincerely held religious belief.

Washington State’s Vaccine Mandate

The Mandate supersedes any contrary state laws or local ordinances. The Mandate does not excuse covered contractors from complying with more protective safety protocols imposed by state laws and local ordinances. Washington State’s current vaccination requirement, Proclamation 21-14.1 (“Proclamation”), is now stricter than the Mandate.

1. Workers Covered by the Washington State Proclamation

The Proclamation requires the following workers to be fully vaccinated against COVID-19 after October 18, 2021:

• All employees of state agencies;
• All employees of public schools and universities;
• All employees of private schools and universities;
• All healthcare providers;
• All contractors working on projects for a state agency, if the work is performed in person and onsite;
• All contractors working onsite for a public or private school or university; and
• All contractors working at any public or private “healthcare setting” that is primarily used for the delivery of in-person health care services to people. If only a portion of a facility is used primarily for the delivery of health care services, such as a pharmacy within a grocery store or a vaccination clinic, only the areas that are primarily used for providing healthcare services are considered a “healthcare setting.”

The following contractors are not required to be fully vaccinated according to the Proclamation:

• Contractors who are present at a site only for a short period of time and are in the physical presence of others for only a “fleeting” period of time (such as contractors delivering supplies by truck to a site where they remain socially distanced from others);
• Contractors who receive funds distributed by an executive cabinet state agency, but where their work is performed at a different physical location (such as vendors employed by local government who receive state funding);
• Contractors who perform work on the outside of a healthcare setting (such as contractors who do exterior maintenance on a hospital but are physically separated from other areas of the hospital); and
• Contractors who perform work at a school or university in a location that is physically distant from student instruction or services.

2. Consequences and Exemptions

Workers covered by this Proclamation must be fully vaccinated or face termination. Workers may be exempt from this vaccine requirement if they are unable to be vaccinated because of a disability or if vaccination conflicts with their sincerely held religious beliefs. The burden is on employers to verify the legitimacy of their religious beliefs and disabilities and to determine whether a reasonable accommodation can be provided.

3. Verification of Vaccination Status

State agencies, public and private schools and universities, and employers of healthcare providers must verify worker vaccination status. Full vaccination status may be verified by a vaccine card or photo of a vaccine card, documentation from a healthcare provider, or a state immunization information system record.

King County Vaccine Mandate

Under King County Executive Order ACO-8-28-EO, all county contractors and volunteers working onsite at executive branch agencies must be fully vaccinated against COVID-19 by October 18, 2021.

1. Workers Covered by King County Mandate

The following workers are required to be fully vaccinated by October 18, 2021:

• Employees of King County agencies;
• Temporary staff of King County agencies;
• On-site volunteers for King County agencies; and
• On-site contractors for King County agencies.

The following workers are not required to be fully vaccinated:

• Workers who are present at King County agency sites for only short periods of time and are only in the physical presence of others for “fleeting” periods (such as contractors delivering supplies by truck to a site where they remain physically distanced from others); and
• Workers who receive funds distributed by a King County agency but whose work is always performed at a different physical location.

2. Consequences and Exemptions

Workers who fail to comply with the King County Executive Order will be terminated. Although this Executive Order does not specifically provide exemptions for workers with disabilities who cannot be vaccinated or workers with sincerely held religious beliefs, these exemptions still exist.

3. Verification of Vaccination Status

Workers must provide proof of full vaccination by providing a vaccination card or photo of a vaccination card, documentation of vaccination from a healthcare provider, an electronic health record, or a state immunization information system record.

If you have any questions regarding any of these mandates or your obligations under them, please contact the Karr Tuttle attorney with whom you normally work.