Coronavirus / COVID-19 Response Team - UPDATE: September 13, 2021 - Miller Johnson

UPDATE:
September 13, 2021

                          Coronavirus / COVID-19
                          Response Team                            2

                         Sandy Andre            Tim Gutwald
                         Gary Chamberlin        Hillary Scholten

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The materials and information have been prepared for
informational purposes only. This is not legal advice, nor
intended to create or constitute a lawyer-client relationship.
Before acting on the basis of any information or material,
readers who have specific questions or problems should
consult their lawyer.

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The Biden Administration announcement:
1. Requiring vaccination for all federal workers
2. Requiring employers with 100+ employees to ensure workers are
   vaccinated or tested weekly; requiring employers to provide paid time
   off to get vaccinated
3. Emergency regulations requiring vaccinations for nursing home
   workers will be expanded to include hospitals and other healthcare
   facilities participating in Medicare or Medicaid.
4. All contracts signed after October 15, government contractors must
   require vaccines for those employees whose work is related to the
   contract.

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Sandy Andre                Hillary Scholten
     616.831.1731                 616.831.1751
andres@millerjohnson.com   scholtenh@millerjohnson.com

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 January 20, 2021: “Protecting the Federal Workforce and
   Requiring Mask-Wearing”
      Established the Safer Federal Worker Task Force
      Task force issues ongoing guidance to heads of agencies on the operation
       of the Federal Government, the safety of its employees, and the continuity
       of Government functions during the COVID-19 pandemic
      Policy applicable to Federal workforce and individuals interacting with
       Federal workforce:
         Take actions to require compliance with CDC guidelines with respect to wearing
          masks, maintaining physical distance, and other public health measures

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 July 29, 2021: Presidential Remarks
  President Biden announces the every federal government employee
   will be asked to attest to their vaccination status
  Any employee who does not attest or is not vaccinated will be
   required to:
    mask;
    test 1-2 times per week;
    socially distance; and
    have limited (or restricted) work-related travel

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 September 9, 2021: Executive Order
  “Requiring Coronavirus Disease 2019 Vaccination for Federal
   Employees”
  It is necessary to require COVID-19 vaccination for all Federal
   employees, subject to such exceptions as required by law.
  Task force shall issue guidance by September 16 on agency
   implementation of this requirement

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 Two provisions:
 1. Directed to develop a 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
 2. Directed to develop a rule that will require employers with more
    than 100 employees to provide paid time off for the time it takes
    workers to get vaccinated or recover from post-vaccination effects
   Like the benefits under American Rescue Plan (set to end on 9/30)?
   Like the requirement in the current OSHA Healthcare ETS?

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 OSH Act requires both determinations to be made in order
 for OSHA to promulgate an ETS
  Employees are exposed to a grave danger from exposure to
   substances or agents determined to be toxic or physically harmful or
   from new hazards, and
  That such an emergency standard is necessary to protect employees
   from such danger
 OSHA’s ETS history
  COVID-19 Healthcare ETS was the first ETS issued since 1983
  Prior to COVID-19 Healthcare ETS, only 9 prior OSHA ETS’s

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 OSH Act provides the authority for OSHA to issue an ETS
 without having to go through the normal rulemaking process
  Normal rulemaking typically requires supplying notice or opportunity
   for public comment or public hearings
 ETS is immediately effective upon publication in the Federal
  Register
 Upon promulgation of an ETS, OSHA is required to begin the
  full rulemaking process for a permanent standard with the
  ETS serving as the proposed standard for this rulemaking

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 ETS is valid until superseded by a permanent standard, which
  OSHA must promulgate within 6 months of publishing the
  ETS in the Federal Register
 The statute is not clear on what happens if OSHA is unable to
  promulgate a permanent standard within 6 months.
 State plans are required to adopt or adhere to an ETS
   OSH Act is not clear on how quickly a state plan must come into
   compliance with an ETS

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  Office of Information and Regulatory Affairs
    Dashboard of Regulatory Actions
     NO OSHA Regulatory Actions currently under review
  DOL/OSHA News Releases
    Several News Releases since President Biden’s September 9th
     announcement
    NO News releases related to a pending OSHA ETS
  OSHA COVID-19 Webpage
    NEW: ETS for Healthcare
    NEW: August 13th updated guidance for All Employers

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 Employers: Many large companies,    Legal challenges:
  like Amazon and Walmart, applauded    ETS Process
  the mandate. Others expressed           Is the ETS process proper? Is there a
  concern over the impact on recruiting           grave danger for employees in the
  workers.                                        workplace; and is the emergency
                                                  standard necessary to protect
                                                  employees from that danger?
 Unions: Initially resistant, but most        Paid Time Off:
  are turning towards embracing, on
                                                 Does OSHA have authority to regulate
  the condition the administration                payment of wages?
  gives them a say in the final                  Does the Executive Order conflict
  requirements                                    with Congressional intent?
                                                   Congress let COVID-related paid
                                                    leave programs expire after
                                                    December 31, 2020.
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 WHEN might we see the rules,  How are violations counted
  when are companies                        for penalty of $14,000 “per
  expected to be fully                      violation” each worker, each
  compliant?                                day?
 Definitions:                             How long will companies have
   What does it mean to be “fully          to comply?
   vaccinated?” Will this include          Exemptions and extensions
   boosters too?
                                             Note: Temporary variance
  How will the rules define “works”            already available for lack of
   or “employees” Full-time? Part-              professional staff to implement
   time? Remote workers?
                                           Who pays for testing?
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 Start planning now                      Process:
  Logistics:                               Receive documentation
   Identify providers for vaccination       substantiating vaccination and
    and testing                              negative test status; track
                                             accordingly
  Policy: Vaccination and Testing
                                            Receive and evaluate
   Policy (incl. paid time
                                             accommodation requests
   component)
                                          Communications:
  Forms: Accommodation Request             Leadership and Employees
   Forms                                     explaining Policy and Process
   Medical and Religious                   Employees explaining
                                             approvals/denials of
                                             accommodation requests
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Tim Gutwald
        616.831.1727
  gutwaldt@millerjohnson.com

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 CMS announced it is developing regulations to require
  vaccinations at health facilities
   Expansion of previously announced requirement for nursing homes
 Likely to come as additional Conditions of Participation
   This is how CMS addressed vaccination reporting and education
   requirements for nursing homes
 New regulations expected in October with Comment Period
 No details on enforcement
  CoPs typically enforced through plans of correction
  Can lead to exclusion from Medicare & Medicaid

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 Will apply to health care providers that are:
   Health Care Facilities; and
   Enrolled in Medicare & Medicaid
 What is included in health care facilities:
   Not exactly sure but…
   Hospitals, dialysis facilities, ASCs, home health agencies, nursing
   homes
 Expected to apply to more than just employees:
  Contractors
  Volunteers
  Non-clinical staff

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 Maybe Nothing?
   A lot of health care facilities already require vaccination
 CMS mentioned two specific things facilities can start doing
  immediately:
 Education:
    Hold general education and informational sessions for staff
    Hold targeted sessions for departments or locations with low vaccination
     rates
 Clinics:
    Hold vaccination clinics or provide staff time off, etc.

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 Policies- Verification and Documentation
  Think long term (boosters, new employees, contracts, medical staff
   bylaws, medical staff policies and procedures)
  Forms: Accommodation Request Forms
    Medical and Religious
  Process:
    Receive documentation substantiating vaccination and negative test
     status; track accordingly
    Receive and evaluate accommodation requests
 Communications:
    To employees
    To independent staff, contracted staff and volunteers

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     Gary Chamberlin
         616.831.1709
 chamberling@millerjohnson.com

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 Press conference remarks suggest a broad vaccine mandate
  will be required for employees of all federal government
  contractors as a means of greatly expanding the reach of
  COVID prevention, and incentivizing American adult workers
  to get vaccinated.
 Newly issued Executive Order will authorize certain
  obligations on federal government
  contractors

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 “Path Out of the Pandemic – President Biden’s COVID-19
  Action Plan”
 Similarly implies that a vaccine requirement will be extended
  to all private sector employers that do business with the
  federal government
 Numerous media and trade journal articles echo this theme –
  likely without having read the Executive Order

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 Widespread belief that all federal contractors will be required
  to mandate their employees be vaccinated – but simply isn’t so
 At this time exact details of what will be required of some
  federal contractors and subcontractors are yet to be
  determined
 Details to come very soon

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 President Biden’s Sept. 9 Executive Order builds upon a July
  2021 policy guidance that required vaccination status - or
  repeated COVID testing, social distancing and masking - of
  any federal contractor employee working onsite at a federal
  government facility
 Part of federal government’s safety protocols for federal
  workers transitioning from 1 ½ years of remote work back to
  federal offices and other facilities

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 “Executive Order on Ensuring Adequate COVID Safety
  Protocols for Federal Contractors” (Sept. 9, 2021)
 Outlines a general policy approach to battling COVID-19 and
  vaccine incentives of certain federal contractors and
  subcontractors
 The E.O. does not (yet) explicitly require mandated
  vaccination of employees of federal
  contractors and subcontractors at this time

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 Details to be developed by the “Safer Federal Workforce Task
  Force” established earlier this year to prepare for the return
  of federal workers to their physical work locations
 Task Force to publish vaccination requirement specifics by
  Sept. 24, 2021
 Nevertheless, some sort of mandatory vaccination of some
  federal contractor and subcontractor workers is expected

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1. Procurement contracts for services, construction, or a
   leasehold interest in real property;
2. Contracts for services covered by the Service Contract Act;
3. Contracts for concessions; and
4. Contracts entered into with the Federal Government in
   connection with Federal property or lands and related to
   offering services for Federal employees, their dependents,
   or the general public.

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 Applies to covered contracts entered into on or after
  October 15, 2021
 Included existing federal contracts extended or renewed,
  even if not a new contract with a federal agency / military

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 Does not apply to manufacturers of
  suppliers of goods that are sold to a
  federal agency, GSA or the military
 Does not apply to federal grants
 Does not apply to employees working
  outside the United States
 Coverage is similar to existing executive
  orders involving federal contractor
  minimum wage rates and sick pay

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 Applies to any employees “in which an individual is working on
  or in connection with a Federal Government contract or
  contract-like instrument”
 What does that mean? See Safer Federal Workplace Task Force
  for details
 Not necessarily a covered federal contractor’s / subcontractor’s
  entire workforce – 20% covered work guideline
 “In connection with” also encompasses support roles such as
  security, maintenance, custodial, etc.
 Obviously, enforcing vaccine requirement on only a segment
                 of workers is a difficult HR challenge
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