ACEC National reached out to US DOT to request clarification on the question of whether the vaccination mandate for federal contractors would apply to State DOT or other local agency contracts that include federal transportation funds.
According to the US DOT general counsel’s office, if the source of the funding is from a federal grant, the Executive Order vaccine mandate for contractors does not apply. But if the source of the funding is from a US DOT contract, e.g. a firm contracting directly with FHWA Federal Lands Highway or with FTA for project management oversight services, then the EO vaccine mandate will apply. At press time for this issue of ACEC/MAtters, MassDOT, MBTA and other transportation agencies have not yet announced their requirements. In addition, OSHA regulations are still in development.
Additional information from ACEC National:
Update 12/1/21 from Dan Hilton at ACEC National
This is an emerging development in the federal contractor vaccine mandate, and as we are observing with the OSHA emergency temporary standard, more legal rulings can be expected before this outcome is concluded. See a client alert by the firm Wiley Rein LLP: Here.
On November 30, 2021, a federal judge in Kentucky granted a preliminary injunction against the “vaccine mandate” for federal contractors (the central obligation under President Biden’s Executive Order 14042) as it relates to covered contracts in Kentucky, Ohio, and Tennessee. U.S. District Judge Gregory F. Van Tatenhove framed the vaccine mandate as a likely overreach of the President’s statutory and constitutional powers (non-delegation doctrine and the Tenth Amendment):
“The question presented here is narrow. Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no.”
The case is Commonwealth of Kentucky et al. v. Biden et al., 3:21-cv-00055, and it is currently pending in the U.S. District Court for the Eastern District of Kentucky.
In the 29-page opinion and order, the Court acknowledged that the vaccine mandate affected federal contractors and subcontractors across the U.S., but expressly limited the scope of the preliminary injunction to the “the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.”
Impact on Industry: A preliminary injunction is not a dispositive finding on the substance of a case, only an initial determination that the party seeking the injunction is reasonably likely to succeed on the merits. Thus, the Kentucky federal court’s ruling is only the beginning of that case. The parties will now begin briefing and arguments to determine whether the Court will issue an order permanently enjoining the federal government from enforcing the vaccine mandate.
In the meantime, contractors face some uncertainty about this injunction’s scope. One area of uncertainty is geographic. The order and opinion leave unclear whether the Court has barred enforcing the vaccine mandate on (a) contractors located in the three states; (b) contracts under performance in those three states; or (c) some combination of the two. Further complications arise regarding this injunction’s application to subcontractors and to indirect support employees covered by the vaccine mandate because they work “in connection with” covered contracts: both groups can often work far from the prime contract’s place of performance.
Another area of uncertainty is the extent to which this injunction bars enforcement of the vaccine mandate beyond the requirements for vaccination. The plaintiffs’ briefing and the Court’s decision focused on the “vaccine mandate” without expressly addressing other requirements set by the Safer Federal Workforce Task Force, such as masking and social distancing. To be sure, those requirements have not drawn attention or objections to anywhere near the degree of the vaccination requirement. However, many contractors may still wish to know whether they are (or can be) contractually obligated to follow those other requirements.
The Kentucky federal court may clarify its preliminary injunction to address one or both of these areas of uncertainty. Unless and until that occurs, contractors may well be served by raising these issues with their contracting officers and higher-tier contractors proactively to reach a mutual understanding about their contracts and subcontracts that have a nexus with KY, OH, and TN.
Contractors should also bear in mind that this injunction does not prevent employers from imposing their own vaccination mandates. As we discussed in a December 2020 alert, employers can still require employees to get vaccinated independent of a contractual provision or flow down, subject to state law. Employers that operate in KY, OH, and TN should carefully consider how to proceed concerning existing vaccination policies and whether they are subject to any state laws or other contractual obligations that may impact their decisions regarding the enforcement of such policies.
Federal contractor employers that operate elsewhere in the U.S. should continue to comply with their contractual obligations and consult counsel before taking any action that could lead to potential legal liability. Employers also should continue to consult with counsel and monitor legal developments nationally (particularly the more than 25 other challenges pending to the vaccine mandate) and in the states where they operate to ensure that they fully understand their legal rights and obligations concerning the vaccine mandate.
Update 11/30/2021 from Dan Hilton at ACEC National:
BLUF: The original deadline to begin enforcement of portions of the ETS was to be December 6. That deadline could change due to ongoing legal proceedings, which are outlined below.
December 6 was also to be the final date that OSHA would accept public comments on the ETS. The Department of Labor has just announced a 45 day extension of the comment deadline to January 19. While ACEC was preparing to file comments to address the challenges our members were facing, we had also requested this extension. See announcement here.
As you will recall, the 5th Circuit Court of Appeals issued an order prohibiting OSHA from enforcing or taking any steps to implement the ETS. That current stay order remains in place while the legal proceedings now move to the 6th Circuit, where the numerous cases filed throughout the country have been consolidated into one case. It is important to know that the 6th Circuit could lift the stay or extend it, and employers should be prepared for both possibilities.
Below is more insight that has been prepared by Bracewell LLP into the expected next steps and deadlines for each side to respond to the Court.
The deadlines set out in the Sixth Circuit’s Scheduling Order, which is available here, provide some insight into the timing of the requirements of the ETS. The Scheduling Order sets the following briefing deadlines:
Given these deadlines, it is likely that the ETS will continue to be stayed until at least December 10th (past the December 6, 2021 deadline) while the Sixth Circuit considers briefing. However, it is possible that, before December 10th, the Sixth Circuit lifts the stay. If the stay is lifted, the ETS requirements could become effective on the date of the court’s order or on a later date set by the Sixth Circuit.
While the briefing schedule does not provide definitive answers to employers on the potential deadlines for ETS compliance, it suggests that the ETS’s December 6, 2021, deadlines may be extended for at least a few days while the Sixth Circuit considers briefing.
In the event that a stay is lifted, it is important to remember that employers may need to comply with most provisions by 30 days after the date of publication in the Federal Register (December 6).
Employers must comply with the testing requirement by 60 days after the date of publication in the Federal Register (January 4).
Update 11/19/2021 from Dan Hilton at ACEC National:
Our allies at the Coalition for Workplace Safety have alerted us to an informative brief prepared by the law firm MorganLewis on the state of play for the OSHA emergency temporary standard (ETS). A reminder that the OSHA ETS and the Federal Contractor mandate, (executive order 14042) are not directly related. The court proceedings affecting the ETS will not impact the requirements that federal contractors must meet.
OSHA ETS CHALLENGES TRANSFERRED TO SIXTH CIRCUIT: WHAT THIS MEANS FOR BUSINESSES
November 19, 2021
The fate of the Occupational Safety and Health Administration’s landmark Emergency Temporary Standard on COVID-19 vaccination is in the hands of the Sixth Circuit—for now. We walk businesses through the legal challenges to the Emergency Temporary Standard, how they may unfold, and what businesses may wish to do in the interim.
Since its publication, the Emergency Temporary Standard (ETS) has only been in effect for a single day. The Occupational Safety and Health Administration (OSHA) published its ETS on November 5, 2021 (our prior LawFlash summarizes the sweeping ETS covering over 84 million workers). The very next day, the US Court of Appeals for the Fifth Circuit issued a temporary stay of the ETS, followed, on November 12, by a permanent stay of the ETS pending judicial review of the underlying motion for a permanent injunction. OSHA has acknowledged the stay on its website, explaining that while it remained confident of its authority to issue the ETS, OSHA had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Finally, in an effort to consolidate the multitude of challenges to the ETS (filed in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and DC Circuits), the Judicial Panel on Multidistrict Litigation held a lottery on November 16 to randomly select an appeals court to hear all of the appeals. The Sixth Circuit emerged as the “winner” and the ETS remains there—at least until it makes its way to the US Supreme Court.
Now that we know what court controls the soon-to-be consolidated legal challenges, the next steps are coming into clearer focus. But in the face of continuing uncertainty over whether the ETS will survive, businesses may wish to continue planning—for example, collecting information about their employees’ vaccination status and developing ETS-compliant policies—so that they are prepared if and when the stay is lifted.
Sixth Circuit Three-Judge Motions Panel
The main question in the near term is whether the Sixth Circuit will stay (or maintain the Fifth Circuit’s stay of) the ETS pending the full appeal on the merits.
For the lead case that was originally filed in the Sixth Circuit, Bentkey Servs., LLC v. OSHA, No. 21-4027, the Sixth Circuit had already issued a briefing schedule on the stay requested in that case, to be completed by November 22. In addition, the federal government could soon file a motion asking the Sixth Circuit to lift the Fifth Circuit’s stay. If it does, we expect that the Sixth Circuit will again issue a briefing schedule on that motion. The three-judge motions panel of the Sixth Circuit will then issue its ruling on the stay, perhaps before the end of the month.
Many judges on the Sixth Circuit have expressed misgivings about administrative agencies’ claimed authority to adopt far-ranging policies. Unless the three-judge motions panel is unrepresentative of the broader court, it is likely they will keep the stay in place based on concerns about the ETS similar to those that the Fifth Circuit identified. Of course, this is just a “best guess”—the motions panel could also lift the stay.
Sixth Circuit En Banc Review
In an unusual move, on November 17, some of the existing petitioners in the Sixth Circuit asked to skip the three-judge motions panel and have the case initially heard before the full Sixth Circuit en banc. These types of requests are typically longshots, but it is not unimaginable that the Sixth Circuit would grant such a request. The response to the petition is due November 30.
If the court does not grant expedited en banc review, a dissatisfied party could try to seek en banc review in front of the whole Sixth Circuit after a ruling by the three-judge motions panel. (Alternatively, since there is no obligation to seek en banc review, a dissatisfied party could seek immediate review by the Supreme Court, as discussed below.) If the motions panel does affirm the stay, the momentum would be against the en banc court reversing that decision, particularly given the overall makeup of the court. Even if a Sixth Circuit motions panel lifts the stay, it is not difficult to envision the full en banc Sixth Circuit reinstating it.
Whatever happens at the Sixth Circuit with the stay (affirming or lifting the stay, either by the motions panel or en banc), the dissatisfied party is likely to appeal the Sixth Circuit’s decision to the Supreme Court. The Supreme Court then must decide for itself whether to leave an existing stay in place or impose a stay of its own (if the Sixth Circuit has lifted it). The Supreme Court will have to rule on the application one way or another. This process takes place on the Court’s so-called “shadow” or “emergency” docket, and normally occurs based only on the papers, without full merits briefing or oral argument.
A Supreme Court ruling is not likely to happen until after the ETS’s first compliance deadline, which would otherwise fall on December 6 (and covers all requirements under the ETS except for the testing of unvaccinated employees). Although many Supreme Court justices have also expressed concerns about administrative agency power, it is still possible that the Supreme Court would lift a stay even if the Sixth Circuit ordered one.
Bottom Line Takeaway for Employers
It is unknown how quickly the Supreme Court will act, although it is certainly possible the Court will issue a decision on the stay in December. The prudent course of action for businesses with more than 100 employees is to continue planning so that they can quickly come into compliance if necessary.
UNDERLYING CHALLENGE TO THE ETS
Putting aside the issue of the stay, the Sixth Circuit also must evaluate the challenge to the ETS on its merits, deciding whether to affirm or invalidate the ETS. Because the ETS expires after six months, the parties may seek to expedite proceedings on the merits of the appeal. Still, even expedited proceedings on the merits of the appeal are not likely to be resolved before the new year, and then it would take another few months following briefing and oral argument for the appeal to make its way through Supreme Court review. A decision by the Supreme Court on the validity of the ETS is not likely before the spring, even under expedited proceedings (although it is possible). For a decision on the underlying challenge to be relevant (i.e., to happen by May 5, 2022, which is six months after the ETS’s November 5, 2021 effective date and the date on which the ETS is set to expire), the government would have to convince the Supreme Court to allow it to bypass the Sixth Circuit altogether, which the Supreme Court permits only rarely. Otherwise, the usual timeline for even an expedited appeal would extend through much (if not all) of the lifespan of the ETS.
Of course, nothing about the litigation regarding the ETS would prevent OSHA from attempting to issue a permanent COVID-19 standard pursuant to its regular notice and comment authority. Depending on what happens in the next few months with COVID-19 and the rates of transmission, that remains another option for OSHA to pursue.
BLUF: The consolidation of OSHA ETS lawsuits took place today, setting in motion the one case to watch as this issue continues to be challenged in the courts. Bloomberg has reported that the Judicial Panel on Multidistrict Litigation has assigned the ETS litigation to the U.S. Court of Appeals for the 6th Circuit. Our understanding is the 6th Circuit could rule on whether to extend or dismiss the existing 5th Circuit stay as early as this weekend. We expect the Supreme Court will take up the case as soon as next week or the week after.
Over the weekend, the 5th Circuit Court of Appeals reaffirmed its order to stay the OSHA emergency temporary standard. This is the second response from the three-member panel, which can be read here. The order will remain in place “pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.” The 5th circuit was silent on whether its order was national or to be limited to the court’s jurisdiction. The stay order concludes by ordering “that OSHA take no steps to implement or enforce the Mandate until further court order.”
A “further court order” will now come from the federal judicial circuit that gets assigned the consolidated petitions for review of the ETS pending in 11 of the 12 circuit courts of appeals. When petitions for review of federal agency action are filed in multiple federal circuit courts, it is required by law that an entity known as the Judicial Panel on Multidistrict Litigation is to select one court of appeals to hear all consolidated cases no matter where they were filed. This is done randomly and is frequently referred to as a “lottery.” The 6th Circuit Court of Appeals will hear the consolidated cases and may end the stay or leave it in place, with the Supreme Court ultimately deciding the fate of the ETS.
Finally, we have learned that as soon as tomorrow, Senate and House Republicans will introduce a joint resolution of disapproval seeking to nullify the ETS under the Congressional Review Act. The effort is being led by Senator Mike Braun (IN) and Rep. Fred Keller (PA). We will share more information as it develops.
Dan Hilton, Director of Procurement Advocacy & International Affairs, ACEC
BLUF: The Safer Federal Workforce Taskforce has moved the date of implementation of EO 14042 to January 18, 2022. Further guidance is linked below.
Don’t miss Friday’s 11/12/21 ACEC National 2:00 ET webinar by labor and employment attorneys from Gibson Dunn on the OSHA ETS, the ongoing legal proceedings, and how EO 14042 factors into this.
The Latest on Federal Vaccination Requirements in the Workplace: OSHA’s Emergency Temporary Standard (ETS) & E.O. 14042 (ACEC National Live Online Class at 2 PM on 11/12/21)
Free to ACEC Members and Non-Members
Registration is Here
EO 14042 Update
As we have been expecting, the Safer Federal Workforce Taskforce has issued updated guidance for federal contractors as it relates to implementing EO 14042. That new guidance is here. In addition to the new guidance, updated FAQ’s have also been published, which can be found here. Some of the new areas they provide information include things such as:
As noted above, the updated guidance also pushes back the deadline by which a covered contractor to January 18, 2022 must be fully vaccinated. Please bear in mind the two-week period that must occur between a second shot and being considered fully vaccinated.
Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation
Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than January 18, 2022. After that date, all covered contractor employees must be fully vaccinated by 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 clause has been incorporated into the covered contract.
The guidance also provides information on treatment of employees that are not fully vaccinated. Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and workspaces.
OSHA ETS Update
We are continuing to track the OSHA emergency temporary standard (ETS). As we have reported, that has currently been halted by the 5th circuit and other cases are also proceeding. The Department of Labor is fighting back, claiming that petitioners are premature in their suits and it’s too early to know how the ETS’ impact will be felt. The following is an update published by attorneys at the firm Bradley Arant Boult Cummings in this morning’s National Law Review.
I would encourage you to join our webinar on Friday at 2:00 ET to get the latest on this issue and your responsibilities in light of the pending litigation. Register here.
In its November 8 response (and an accompanying letter to the court), the DOL noted that it believes the petitioners request for a stay to be “premature,” pointing out that any harm cited by petitioners in their challenge is “months” away. The DOL also argued that the petitioners could not show that “their claimed injuries outweigh the harm of staying a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.” The brief states that “OSHA’s detailed analysis of the [ETS’s] impact shows that a stay would likely cost dozens or even hundreds of lives per day.” In contrast, challenges to the ETS argue that the administrative and financial burdens to comply with the rule are too high – under the rule employers could face fines of $13,653 per serious violation and up to $136,532 per willful or repeated violations.
The DOL’s November 8 response also argued that the stay was premature, particularly in light of the multiple challenges across the country, citing federal law (28 U.S.C. § 2112) that governs the procedure courts must follow when “multiple petitions for review of a single agency order are filed in at least two courts of appeals within ten days after issuance of the order.” Under these circumstances, the cases must be consolidated and transferred to a single circuit court, which is chosen through a lottery process. The lottery is expected to take place on November 16, 2021.
So Now What?
In the meantime, the Fifth Circuit’s stay remains in place (so the immediate deadlines are up in the air for now). Even if a court lifts the stay, the timing for employers to comply with the ETS rule will be tolled accordingly, so you’ll have a little time. It is likely the stay will remain in place while the multidistrict litigation is pending, however you don’t want to get caught unawares if the ETS is back on. Employers should keep an eye on not only the Fifth Circuit, but whatever circuit is chosen by the lottery and continue with any plans for compliance already in motion. You should probably think about what steps you will need to take if the ETS moves forward — a policy, identifying your employees who are not vaccinated, and how you might implement a testing program — just in case you need them on short notice.
As we will hear on 11/12, there are still requirements for employers that must be implemented, regardless of the stay, and sooner than January 2022. Some of those include having your vaccination and testing policy in place, you are tracking your employee’s vaccination status and you are notifying employees of these policies.
Dan Hilton, Director of Procurement Advocacy & International Affairs, American Council of Engineering Companies
From ACEC National’s Dan Hilton:
On Saturday, 11/6/21, the US Court of Appeals for the Fifth Circuit issued a Temporary Restraining Order (TRO) on OSHA’s vaccination, testing, and face coverings emergency temporary standard (ETS). It is important to understand that this ruling has been challenged by the federal government and legal proceedings are ongoing. In addition, it only affects the OSHA ETS. It does not alter the implementation of EO 14042, the federal contractor mandate.
Friday, Nov. 12, 2 PM – 3 PM ET: ACEC National is offering a complimentary webinar for our members on both mandates to examine this further
Click here to register.
[Note: This is right before our ACEC/MA HR Forum @ 3 – 4 PM: https://www.acecma.org/events/acec-ma-hr-forum-to-hire-or-not-to-hire-talent-in-need-of-us-visas-3958]
This past weekend’s court ruling was the first of what we expect to be a series of legal challenges that could impact the substance and timing of the OSHA Emergency Temporary Standard (ETS). The suit challenging OSHA’s ETS was initiated on behalf of a group of private businesses, religious organizations, and several states. The petitioners argued that OSHA overstepped its legal authority in issuing an emergency standard to address COVID-19 in US workplaces at this point in the pandemic. The Stay Order is silent as to its scope or reach and the entirety of the court’s explanation for the stay Order is below:
“Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”
In addition to the 5th Circuit decision, five separate lawsuits have been filed in the last several days challenging the mandate. Saturday’s ruling to stay the ETS is the first court ruling to pause implementation of any vaccination-related mandate by the federal government or a state government. It is widely presumed that expedited hearings will be set and a prompt decision in the case is likely to be made soon after. It is also believed that the various lawsuits will be consolidated into one case.
There are numerous opinions on the outcome of this issue. There is no guarantee the stay of the ETS remains in place or that higher courts will get involved, including the Supreme Court. To date, none of the parties challenging the companies and governmental entities that have implemented vaccinate mandates have stopped the mandates. So there is reason to believe that the ETS could be fully implemented and possibly even on the current schedule of January 4, 2022.
With respect to EO 14042, the federal contractor mandate, the White House has delayed the start of implementation to January 4, 2022. That is confirmed and is not directly impacted by the court proceedings related to the OSHA ETS. The Safer Federal Workforce Taskforce will still need to provide updated guidance to agencies and contracting officers to address this change of date. That has not yet been updated but we will continue monitoring their website and would encourage you to remain vigilant as well.
Dan Hilton, Director of Procurement Advocacy & International Affairs,
American Council of Engineering Companies
Covid-19 Vaccine Policy Survey
ACEC Research Institute conducted a survey on Covid-19 Vaccine Policy, which was sent to all ACEC member firms on October 22, 2021. The survey had a strong 16% response rate.
A few highlights from the survey:
BLUF (bottom line up front): Today’s OSHA ETS announcement pushes back the date of implementation for E.O. 14042, the federal contractor mandate. ALL vaccination mandates will begin implementation on January 4, 2022. It remains unclear if that means you need to be fully vaccinated two weeks prior or not, as presently required in the federal contractor mandate. We are seeking this clarification.
This morning, the Biden Administration released their long-awaited Emergency Temporary Standard (ETS), to require employers with 100 or more employees to ensure their employees are vaccinated or can produce a negative test. ACEC remains engaged in this process and will be working with business groups such as the Coalition for Workplace Safety to ensure the voice of the business community is heard. We have also been invited to meet with the White House this afternoon as they brief members of the business community.
According to the attached fact sheet, the deadline for workers to receive their shots will be the same for the OSHA rule and the previously-announced federal contractor vaccination requirement (E.O. 14042): January 4, 2022. This is a change for federal contractors – the Administration is aligning all mandates to begin implementation on January 4, 2022. In our letter to the White House, ACEC had previously requested a pause in its implementation of E.O. 14042 and to provide federal contractors with additional flexibility. We continue to recognize the importance of vaccinations, but have heard from many of our member firms that these mandates are proving very challenging to navigate, and we are pleased to see they are responding to our calls for flexibility.
The fact sheet also notes that OSHA will not apply its new rule to workplaces covered by the federal contractor vaccination requirement. And, both OSHA and CMS are making clear that their new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing. Importantly, “[w]hile the testing requirement for unvaccinated workers will begin after January 4th, employers must be in compliance with all other requirements – such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers – on December 5th.”
Also of note, employees that choose weekly testing rather than vaccination will be required to pay for testing. Specifically, the ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements or other collectively negotiated agreements. OSHA notes that the ETS also does not prohibit the employer from paying for costs associated with testing required by the ETS. Otherwise, the agency leaves the decision regarding who pays for the testing to the employer.
The full text of the pre-published rule can be found here.
Extensive FAQs can be found here.
This morning, the Safer Federal Workforce Taskforce released new guidance for federal contractors. Included are new guidance and steps that employers should take in the event of an employee’s refusal to receive a vaccination, what workplace safety protocols need to be followed for those that have received an accommodation, and how corporate affiliates are treated with respect to being a covered contractor.
The new guidance can be found Here.
As you will recall, ACEC has written the Biden Administration with the support of other associations in the built environment, requesting more flexibility for federal contractors. We will continue to work with the administration as this progresses, and want to hear from you and your firms on the EO’s ongoing impact. Please don’t hesitate to contact Dan Hilton at ACEC with any comments or questions.
Some additional links of interest can be found below:
1) This afternoon we sent the attached letter to the White House seeking additional flexibility to implement E.O. 14042. We were joined in our letter by the American Road & Transportation Builders Association, the American Subcontractors Association, Independent Electrical Contractors, the National Society of Professional Surveyors, and others.
In our letter, we make clear that we support the goal of the President’s policy and agree that vaccinations are essential to controlling the spread of the virus and restoring a sense of normalcy to society and the economy. However, the fast-approaching deadline is proving very challenging to the built environment community, leading to significant disruptions and the likelihood of delayed projects. We have asked for more flexibility with respect to testing, consistency of enforcement by agencies and clearer guidance as booster shots become more widely available.
2) On 10/22/21, the Safer Federal Workforce Taskforce published updated guidance for federal contractors. It provides updates to areas such as:
The updated guidance can be found HERE.
3) Finally, we also wanted to take this opportunity to let you know that while the OSHA Emergency Temporary Standard (ETS) continues to be reviewed by the Office of Management and Budget (OMB) and Office of Information and Regulatory Affairs (OIRA), on Friday, ACEC met with OMB/OIRA and the Department of Labor/OSHA to lay out the challenges our members continue to face in preparing for this ETS. We shared with them the difficulties member firms are experiencing filling key roles, especially in the mid-senior range -- which will lead to delayed projects and greater disruption. We also raised our concerns over the potentially high costs of testing, the availability of testing kits and made clear how much of design and engineering work is done outdoors, which they took an interest in and requested further explanation.
OIRA continues to schedule meetings with industry stakeholder groups, causing a likelihood of the release of the ETS to be pushed further out. We will share its contents upon its publication in the Federal Register.
1. Several new class deviations and guidance memos have been issued by federal agencies to implement EO 14042:
2. The law firm Crowell & Moring LLP has developed a great matrix that displays all of the previously released deviations, including the types of contracts that are expressly covered, expressly excluded, and “strongly encouraged” to be covered. The matrix can be found HERE.
3. Finally, while we’ve been focusing on EO 14042, which impacts all federal contractors working with the government, OSHA has been drafting their Emergency Temporary Standard (ETS), which, similar to the executive order, would require employees of all companies with 100 or more employees to be vaccinated against COVID-19. That has entered the next step in the process, OSHA has sent the ETS to the Office of Information and Regulatory Affairs (OIRA), a division within the Office of Management and Budget (OMB) that oversees the implementation of government-wide policies and more importantly reviews draft regulations. OIRA is required to follow certain principles, such as consideration of alternatives and analysis of impacts, both benefits and costs.
ACEC is working with the Coalition for Workplace Safety to review the ETS upon its publication and to comment on its impact.
OSHA Sends Employer Vaccine Rule to White House for Final Review
By Ben Penn / October 12, 2021 07:48PM ET / Bloomberg Law
The U.S. Labor Department advanced an emergency regulation for final White House review that will force many private-sector companies to require employee vaccinations or virus testing.
DOL’s Occupational Safety and Health Administration sent the rule to the White House’s regulatory office Tuesday, the agency announced. Although the Office of Information and Regulatory Affairs can sometimes take months to conclude its analysis, President Joe Biden called for an expedited process, which could mean the office will give its OK in as little as a day.
OSHA would then be able to publish the emergency temporary standard, and it would take effect immediately. Historically, the agency has provided businesses with a short period before they’d be required to comply.
The standard implements the president’s Sept. 9 order for a regulation requiring businesses with at least 100 employees to mandate workers get fully vaccinated or be tested weekly for Covid-19. Biden also asked for the rule to provide paid time off for workers to get vaccinated and to recover from any side effects.
An emergency standard bypasses what is normally a years-long regulatory process. To do so, OSHA must establish that the vaccination or testing requirement was necessary to protect workers from a “grave danger.”
“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace,” a DOL spokesperson said in an email. “On Tuesday, October 12, as part of the regulatory review process, the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget.”
To contact the reporter on this story: Ben Penn in Washington at email@example.com
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Late on 10/1/21: the FAR Council issued the expected contract clause that will impose the previously issued Safer Federal Workforce Taskforce (SFWTF) Guidance’s requirements on contractors and subcontractors, as well as a memorandum providing guidance to agencies regarding its implementation. The new clause and memorandum to agencies are available HERE. Several agencies have taken action to implement EO 14042, issuing class deviation letters listed below to contracting officers.
DoD – Class Deviation 2021-O0009 - Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors – Effective date: 15 Oct 21, More >
GSA – Class Deviation CD-2021-13 - - Implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors – Effective date: 30 Sep 21, More >
DHS – Class Deviation 22-01 - Executive Order 14042 Ensuring Adequate COVID Safety Protocols for Federal Contractors – Effective date: 1 Oct 21, More >
Millennium Challenge Corporation – Class Deviation - to implement 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors – Effective date: 1 Oct 21, More >
NASA – Class Deviation PCD 21-03 – Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors – Effective date: 1 Oct 20, More >
In addition, the SFWTF has updated FAQs and guidance, specifically as it relates to vaccine exceptions and the process for receiving accommodations from federal agencies; see that guidance HERE.
As a reminder, with agencies now acting to implement EO 14042, ACEC will hold a webinar focusing exclusively on EO 14042 and how it may impact your firm and your firm’s work on Monday, October 11, 1:30 – 3:00 EST and presented by attorneys with the Contracts Practice Group at the firm Covington & Burling: Registration info >
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