In response to the Path Out of the Pandemic: COVID-19 Action Plan announced by President Biden on September 9, and Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), signed by the President the same day, the Safer Federal Workforce Task Force (“Task Force”) issued “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”) on September 24, 2021. We addressed the Order and Guidance in prior blog posts, one from October 13, 2021, and one from September 28, 2021.

The Order requires all executive departments and agencies of the federal government to ensure that covered contracts and contract-like instruments include a clause (“Clause”) requiring covered federal government contractors and subcontractors at any tier (“Covered Contractors”), for the duration of their respective contracts, to comply with the requirements of the Order and all guidance published by the Task Force.  The requirements apply to new contracts awarded on or after October 15, 2021, and to contracts entered before that date when an option is extended or an extension is made.

Important Dates for Covered Contractors:

  • October 15, 2021 – For all contracts awarded prior to October 15, where performance is ongoing, the Clause must be incorporated when an option is exercised or an extension is made. Between October 15 and November 14, agencies must include the Clause in their solicitations.  The government encouraged agencies and contractors to include the Clause in contracts that were solicited before October 15, but did not require them to do so.
  • November 14, 2021 – All new contracts awarded on or after November 14 must include the Clause.
  • December 8, 2021 – All Covered Contractor Employees under existing contracts are to be fully vaccinated for COVID-19 no later than December 8, unless the employee is legally entitled to an accommodation. The Guidance, however, is silent as to the treatment of employees who are not vaccinated by the deadline, and it does not require contractors to terminate the employment of unvaccinated workers. Employers need to consider how they will respond to employees who refuse to be vaccinated and are not entitled to an accommodation under the law.  In doing so, employers should review the FAQs issued to federal agencies regarding vaccination and the considerations listed for enforcement of the vaccination requirement.
  • Post-December 8, 2021 – 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.

As of October 15, 2021, federal agencies are directed to include the Clause mandating compliance with the Order in their covered government contracts.  At present, some agencies are being very aggressive in demanding that the Clause be included in new contracts and before any existing contract option or renewal is acted upon.  Contractors should therefore begin the process of collecting employee vaccination information. To be fully vaccinated by the December 8, 2021 deadline, Covered Contractor Employees must receive their final shot by November 24, 2021.  Covered Contractors should also set a date well in advance of December 8, 2021, by which employees may request accommodations so that the employers can engage in the interactive process. Accommodations could include regular COVID-19 testing, masking, social distancing and/or remote work.

We will continue to monitor the ongoing developments regarding federal government-mandated vaccinations and remain available to assist companies in determining the applicability and implementation of the Order’s requirements.

 

As featured in #WorkforceWednesday:  This week, we review the status of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) requiring employers to mandate vaccines.

Employers Await White House Decision on OSHA ETS

Last week, OSHA sent to the White House its draft emergency temporary standard, which will require employers with 100 or more employees to ensure that their employees are vaccinated or provide a negative COVID test at least weekly. The Office of Information and Regulatory Affairs will now review OSHA’s ETS, holding meetings with business groups, worker groups, and other interested parties. Meanwhile, further clarification has been released on the mandatory safety protocols and vaccination requirements federal contractors must implement.

Texas Governor Bans Vaccine Mandates

In direct response to the federal contractor mandate and pending ETS, Texas Governor Greg Abbott instituted an executive order prohibiting Texas employers from mandating vaccines for employees who object to becoming vaccinated due to “personal conscience,” including religious beliefs and medical reasons. Read more about the Texas order.

Health Plan Discounts OK for Vaccinated Employees

The U.S. Departments of Labor, Health and Human Services, and the Treasury collectively published Frequently Asked Questions (FAQs) around health premium incentives for vaccines. The FAQs clarified that employers can give premium discounts or impose a surcharge on health plan participants based on their COVID-19 vaccination status. The Equal Employment Opportunity Commission took a similar position earlier this year.

See below for the video and podcast links. For Other Highlights and more news, visit https://www.ebglaw.com/eltw230.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

Since President Biden issued Executive Order 14042 (the “Order”), and the Safer Federal Workforce Task Force (the “Task Force”) issued companion Guidance interpreting the Order (our summary of which can be found here), there have been additional developments providing further clarity on the implementation of the required COVID-19 safety protocols for federal contractors.

On September 30, 2021, the Federal Acquisition Regulation (“FAR”) Council issued a Memorandum on Issuance of Agency Deviations to Implement Executive Order 14042.  Since that date, a number of federal agencies have issued class deviations to incorporate required language into their covered contracts.  On October 4, 2021, the Task Force updated its FAQs on Vaccinations.

FAR Council Memo

The much-anticipated FAR Council Memorandum provides federal agencies that award contracts under the FAR with direction for the incorporation of a clause into their solicitations and contracts to implement the requirements of the Order and Task Force Guidance (the “FAR Deviation Clause”).  The memorandum includes the language of the FAR Deviation Clause, which provides, in relevant part:

  • Contractors subject to the FAR Deviation Clause must comply with all guidance, including guidance conveyed through FAQs that may be amended during the performance of the contract, published by the Task Force.
  • Contractors must include the substance of the FAR Deviation Clause in, and flow down its requirements to, all subcontracts of any tier that exceed the simplified acquisition threshold ($250,000) and are for services, including construction, that are performed whole or in part within the United States or its outlying areas.

The FAR Council Memorandum clarifies that the Clause must be included in the following solicitations and contracts for services:

  • new contracts awarded on or after November 14, 2021 from solicitations issued before October 15, 2021 (including new orders awarded on or after November 14 from solicitations issued before October 15 under existing indefinite delivery, indefinite quantity (IDIQ) contracts);
  • new solicitations issued on or after October 15, 2021 and contracts awarded pursuant to those solicitations (including new solicitations issued on or after October 15 for orders awarded pursuant to those solicitations under existing indefinite-delivery contracts);
  • extensions or renewals of existing contracts and orders awarded on or after October 15, 2021; and
  • options on existing contracts and orders exercised on or after October 15, 2021

Importantly, the memorandum reiterates the Task Force Guidance’s encouragement that agencies include the COVID-19 safety protocols and the FAR Deviation Clause in contracts and subcontracts not expressly covered by the Order, including contracts that have been or will be awarded prior to November 14 on solicitations issued before October 15; and contracts that are not covered or directly addressed by the Order, because the contract or subcontract falls under the simplified acquisition threshold or is a contract or subcontract for the manufacturing of products.

The FAR Deviation Clause, however, does not apply to contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, or solicitations and contracts in which performance is outside the United States or its outlying areas.

The FAR Council directs agencies to act expeditiously to issue deviations so that contracting officers may begin to apply the Clause on or before October 15, 2021.  Pursuant to a September 30, 2021, letter from the Civilian Agency Acquisition Council (the “CAAC Letter”), agencies that adopt the Clause without change will be considered to have consulted with the CAAC Chair, as required by FAR 1.404(a)(1).

Class Deviations by Federal Agencies

Following the FAR Council’s directive and the issuance of the CAAC Letter, a number of federal agencies have since issued class deviations, including the Department of Defense, the Department of Homeland Security, the Department of Justice, the Department of Veteran Affairs, the General Services Administration (“GSA”) (as well as modification to the Multiple Award Schedule), the National Aeronautics and Space Administration, and the Millennium Challenge Corporation.

These class deviations provide further insight as to how individual agencies will approach the Order and any mass modification program.  The GSA, in particular, provides detailed information in its Class Deviation CD-2021-13 as to the scope, applicability, and implementation of the Order and its corresponding Guidance.  In order to simplify compliance tracking, vendor communication, and customer messaging efforts, the GSA will incorporate the Clause into all new and existing contracts, including contracts solely for products.  The FAR Deviation Clause will be incorporated into GSA contracts through a bilateral modification.

GSA contracting officers are asked to complete as many modifications as possible before November 14, 2021.  The GSA also provides some insight as to potential interim penalties, at least with respect to IDIQ contracts, that are not returned signed by that date.  Contracting officers may temporarily hide contractor information on GSA websites and/or e-tools, or flag contractors that have not accepted the modification.  Such actions could clearly impact potential new or additional business for contractors that have not signed the modification.

Task Force FAQs

In addition to the FAQs provided for federal contractors, the Task Force also has updated its FAQs regarding vaccination for federal employees.  Although these vaccination FAQs do not apply directly to federal contractors, they are a useful guide to issues that will be confronted by contractors seeking to comply with EO 14042.

For instance, the FAQs address the considerations federal agencies should take into account when determining whether an employee should be entitled to an exception to the vaccination requirement.  The FAQs instruct agencies to consider “factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19.”  Employees who are granted an exception “would [generally] need to follow applicable masking, physical distancing, and testing protocols for individuals who are not fully vaccinated, as well as applicable travel guidance.”  But, in certain cases in which the agency determines that no safety protocol other than vaccination would adequately protect coworkers, the agency may deny the requested accommodation.

In cases in which the agency denies an exception, the employee must receive their first (or, if a one-dose series, only) dose within two weeks of the denial, and the second dose (if applicable) within 6 weeks of receiving the first dose.  Employees that refuse vaccination are subject to discipline, up to and including termination of employment. The FAQs recommend the adoption of an enforcement process that includes a brief, five-day period of education and counseling to encourage vaccination, followed by progressive discipline that would include a short suspension of 14 days or less.

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With October 15, 2021 almost here, and the other upcoming deadlines in the Guidance, we anticipate further clarifications from the Task Force and individual agencies.  We will continue to monitor the ongoing developments in this area and remain available to assist companies in determining the applicability and implementation of the Order’s requirements.

On Monday, October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40 (the “Order”) prohibiting vaccine mandates by any entity. The Order, which was effective upon issuance, states: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” It provides for a maximum fine of up to $1,000 per violation for any failure to comply with the order. In addition, it suspends the powers of the state’s emergency management director and the authority of local officials, including the Department of State Health Services’ preemptive authority, with respect to the declaration of local disasters and coordination or control of public health emergencies, to the extent necessary to ensure they do not impose restrictions that are inconsistent with the Order.

The Order is intended to remain in effect until Texas lawmakers pass legislation on the subject. To that end, Gov. Abbott has asked that the issue be added as an item to the third legislative special session, which ends on October 19, 2021.

The Order’s preamble strongly encourages COVID-19 vaccines for those who are eligible to receive vaccination, but asserts that vaccination must be voluntary for Texans and goes on to characterize the Biden Administration’s vaccination policy as “yet another instance of federal overreach” that is “now bullying many private entities into imposing COVID-19 vaccine mandates.”

This newest executive order currently leaves open the question of whether its prohibition of vaccine mandates by employers creates an impermissible conflict with federal vaccination mandates, including the federal contractor vaccine program and the anticipated Emergency Temporary Standard to be issued by the Occupational Safety and Health Administration. For now, Texas employers contemplating vaccine mandates or making decisions based on employees’ refusal to get vaccinated will be constrained to walk a fine line to maintain state and federal compliance.  We are continuing to track updates regarding this Order, as well as any legislative developments that would lend more insight and guidance.

As featured in #WorkforceWednesday:  This week, we focus on what can be learned from the Equal Opportunity Employment Commission’s (EEOC’s) fiscal year (FY) 2021 filings as employers continue to navigate COVID-19 in the months ahead.

EEOC: Back in Enforcement Action

The EEOC increased its FY 2021 filings by 12 percent, signaling to employers that the agency is returning to a more robust enforcement level after a downturn in activity last year amid COVID-19. Attorneys Jim Petrie and Amy Bharj tell us more about what we can learn from the past year’s cases.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

New York Limits Private Confidential Settlements of Human Rights Complaints

The New York State Division of Human Rights (NYSDHR) has issued a notice announcing a significant change in policy regarding the NYSDHR’s processes for complaint resolution. After October 12, 2021, the NYSDHR will no longer grant requests for discontinuance of complaints due to confidential private settlements. Private confidential settlements will no longer be an option for complaints filed after October 12. Read more.

Anti-Harassment Training for the Virtual and Hybrid Workplace

As the past year’s EEOC filings indicate, it has become critical that your anti-harassment training addresses inappropriate behaviors that can occur in virtual spaces, such as texting, chats, and social media. Learn more about how our e-learning course, Halting Harassment, has been updated to include scenarios employees may encounter in the virtual and hybrid work environment. Read more.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw229.

On October 5, 2021, New Jersey Governor Phil Murphy signed A681 (“Law”) into law, strengthening the state’s protections against age discrimination by amending the Law Against Discrimination (LAD) to:

  • delete the provision that had allowed employers not to hire or to promote employees over age 70 because of their age;
  • delete the provision that permitted higher education institutions to require tenured employees to retire at 70 years old; and
  • provide that an employee may seek all remedies permitted by the LAD if required to retire because of age, instead of being limited to filing a complaint with the Attorney General and having relief limited to reinstatement with back pay and interest.

In addition, the Law amends N.J.S.A. 10:3-1 to eliminate a mandatory retirement provision that permitted governmental employers to require retirement when employees attained a particular age, if the employer could show “that the retirement age bears a manifest relationship to the employment in question.”  With the amendment, public employers may require retirement upon attainment of a set age only if they can show that the person is “unable to adequately perform the[ir] duties.”

What This Means for Employers:

The Law gives stronger protections to employees over the age of 70 and makes it more difficult for New Jersey public employers and higher education institutions to set mandatory retirement ages.  It also enhances the incentives for employees over age 70 to file a claim if they believe they have been terminated, not hired, or passed over for promotion because of age.  With the enactment, New Jersey employers must be ever more mindful to ensure their employment decisions are based on qualifications and other legitimate business reasons, and not on stereotyped notions of age.

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Kamil Gajda, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

As we previously reported, as of September 6, 2021, all New York HERO Act (“HERO Act”) airborne infectious disease exposure prevention plans (“Safety Plans”) must be implemented due to COVID-19 being designated as a serious public health risk under the HERO Act. This designation was recently extended until at least October 31, 2021, per the New York Commissioner of Health’s announcement.

To help employers comply with the HERO Act’s requirements, the New York State Department of Labor (“NYSDOL”) has published a variety of guidance materials, such as model Safety Plans, including Information and Frequently Asked Questions (“FAQs”) that were recently updated. The new FAQs contain important changes for employers concerning Safety Plans, as required under Section 1 of the HERO Act, as well as the HERO Act’s joint labor-management workplace safety committee requirements under Section 2, effective November 1, 2021. FAQs are now available in 11 languages on the NYSDOL’s HERO Act website.

Safety Plan Updates (Section 1 of the HERO Act)

The updated FAQs focus on the requirements imposed by Section 1 of the HERO Act, which is the portion of the law mandating employers to implement Safety Plans when an infectious disease is designated as a serious risk. The FAQs now state that employers must implement HERO Act Safety Plans specifically for COVID-19 due to the New York Commissioner of Health’s designation. Importantly, the updated FAQs eliminate certain guidance contained in the previous FAQs regarding alternative Safety Plans. As a reminder, employers who do not adopt a model Safety Plan as provided by the NYSDOL, and instead create their own Safety Plan, must engage their employees in meaningful participation to develop such an alternative plan.

This left the question open as to whether minor (or more substantial) alterations to a model Safety Plan could potentially convert such plan into an alternative Safety Plan, and thus require meaningful participation from employees. The previous FAQs stated that “amendments to such [model Safety Plans] that go beyond the open fields of such template likely do constitute an ‘alternative plan’ requiring employee review and/or participation.” This language has been removed from the current FAQs. Accordingly, employers should still be cautious in making any modifications to their Safety Plans outside of the open fields where they are required to input information, such as in the Physical Distancing and Engineering/Administrative Controls sections.

According to the updated FAQs, employers should no longer be on the lookout for any additional model Safety Plans. As of this writing, the NYSDOL has released a general model Safety Plan in English as well as in Spanish, and 11 industry-specific model Safety Plans. The previous FAQs stated that the NYSDOL will consider additional templates as such feedback is received, but this language has been removed from the updated FAQs.

Additionally, the updated FAQs provide that employers who have a workplace safety committee in place under Section 2 of the HERO Act must review any Safety Plan modifications made after November 1, 2021 with such workplace safety committee.

Workplace Safety Committee Updates (Section 2 of the HERO Act)

While these updated FAQs are, per their new title, focused on Section 1 of the HERO Act, they also provide some clarity regarding Section 2 – the workplace safety committee portion of the HERO Act. Effective November 1, 2021, Section 2 requires private employers with 10 or more employees to allow employees to establish and administer a joint labor-management workplace safety committee.

The previous FAQs created some confusion, as certain areas of the guidance indicated that employers with 10 or more employees were required to establish such workplace safety committees, not merely allow the employees to establish them. The updated FAQs resolve this confusion by now matching the statutory language that employers need only allow employees to create such committees. Thus, consistent with legislative language, there is no affirmative HERO Act requirement for employers to create workplace safety committees.

The updated FAQs also explicitly provide that the NYSDOL will provide additional guidance regarding Section 2 of the HERO Act prior to November 1, 2021. We will provide updates as they become available.

On Friday, October 1, 2021, the New York State Division of Human Rights (“the Division”), the agency responsible for enforcement of the New York State Human Rights Law (“NYSHRL”), issued a notice, partially reproduced on the Division’s website, announcing a significant change in policy regarding the agency’s processes for complaint resolution: after October 12, 2021, the Division will no longer grant requests for discontinuance of complaints due to confidential private settlements.

As stated in the Division’s notice, if a complainant seeks to discontinue an action prior to a hearing, the complainant’s attorney will be required to state in writing why the discontinuance is sought and if the reason is private settlement, the discontinuance will not be granted. Instead, the parties will be permitted to (a) settle the matter publicly through an Order after stipulation that includes the terms of the settlement, or (b) proceed through the Division’s public hearing process. The Division states that this is “in the public interest for transparency and good governance.”

Why is this significant?

The NYSHRL (Article 15 of the New York Executive Law) is a far-reaching law prohibiting, among other things, discrimination in employment. In recent years, New York State has expanded this law considerably – particularly with respect to sexual harassment claims. For example, New York State broadened its statutory definition of covered workers who can bring harassment claims, lowered the standard for hostile work environment claims, prohibited mandatory pre-dispute arbitration clauses, and required employers to maintain sexual harassment policies and provide training (see detailed explanations set forth in prior advisories here, here, and here). Significantly, New York State added provisions (N.Y. General Obligations Law § 5-336 and N.Y. Civil Practice Law § 5003-b) that essentially ban nondisclosure clauses that would prevent the disclosure of the underlying facts and circumstances in settlements, agreements, or other resolutions of harassment claims, unless the condition of confidentiality is the complainant’s preference. The new Division policy appears to preclude a complainant from choosing confidentiality of settlement terms.

It has been a common practice for employers and complainants to negotiate settlement of discrimination claims, particularly where the Division’s initial investigation results in a finding of probable cause. Indeed, the Division often attempts to broker settlements before or after findings of probable cause through its conciliation process, but, frequently, parties pursue private settlement in the interest of privacy and towards an outcome that is mutually beneficial. According to the Division, some 77% of post-probable cause cases result in settlements, and nearly half of those are reached privately. For complaints filed after October 12, 2021, private confidential settlements will no longer be an option.

What is the impact?

Parties to a complaint before the Division will still be able to settle, but a major incentive for doing so – confidentiality – is effectively eliminated by this policy change.  The Division’s notice states that it will no longer issue Commissioner’s Orders simply discontinuing complaints after a private settlement, but will instead require public disclosure of settlement terms, through either an Order or a public hearing. Several details remain unclear at this time, specifically: (a) whether the Division’s new position only applies to those cases in which it has issued a “probable cause” determination while still allowing for private settlements prior to any such determination; (b)what would happen if complainants withdrew their complaints prior to a hearing, as permitted under the Division’s Rules of Practice; and (c)which precise terms of any settlement would need to be included in an Order after Stipulation. Generally, the Division has permitted parties to pending complaints to keep agreements regarding settlement amounts confidential, even if they cannot keep the underlying facts and circumstances confidential.

It is almost certain that this new policy will discourage private settlement of complaints pending at the Division. In cases where a potential litigant has presented a plausible claim and is considering filing a NYSDHR complaint, it may be in all parties’ interest to raise the question of a private settlement before a complaint is ever filed.

We will monitor this policy and its ultimate implementation, and will provide updates if and when additional guidance become available.

As featured in #WorkforceWednesday:  This week, we look at the COVID-19 vaccination requirements for federal contractors and how the National Labor Relations Board (NLRB) is creating a more expansive view of the employment relationship.

Employers Prepare for Biden’s Expansive Vaccine Mandate

The full impact of President Biden’s COVID-19 action plan is sinking in for employers. The Safer Federal Workforce Task Force released guidance for federal contractors and subcontractors requiring vaccinations for most employees of federal contractors by December 8.

Vaccine Mandate Pushback Begins

The vaccine mandates initiated by President Biden are already seeing court challenges. Federal workers filed a lawsuit September 23, and more challenges are expected as the new federal requirements may conflict with some state laws. At least 24 state attorneys general have announced their intent to sue in anticipation of the Occupational Safety and Health Administration’s Emergency Temporary Standard.

Reach of NLRA Could Soon Expand

The NLRB is beginning to show the impact of the Biden administration’s more expansive view of the employment relationship under the National Labor Relations Act.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw228.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

Ohio’s minimum wage will increase to $9.30 per hour for non-tipped employees and $4.65 per hour for tipped employees, effective January 1, 2022.  This new minimum wage will apply to employees of businesses with annual gross receipts of more than $342,000 per year.

For employees at smaller companies with annual gross receipts of $342,000 or less per year, and for 14- and 15-year-olds, the minimum wage continues to be the federal rate of $7.25 per hour.

As a reminder, employers should update their minimum wage and overtime poster, which should be posted in a location that is easily visible, such as an employee breakroom or other common space accessible by employees. A copy of the new 2022 poster is available from the Ohio Department of Commerce and can be found here.