by Mollie Mohan, Kate Nash, Lisa Berns, and Christine Self
On September 9, 2021, President Biden announced a sweeping new plan to increase the country’s COVID-19 vaccination rate. A summary of the plan, and its implications for Missouri and Illinois employers, is below.
OSHA Rule Mandating Vaccines for Employers with Over 100 Employees
President Biden announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will apply to employers with 100 or more employees. State and local governments (including public employers) are exempt from OSHA and will not be subject to the OSHA vaccine mandate rule.
The rule will require that covered employers ensure their workforce is fully vaccinated or require that any workers who remain unvaccinated produce a negative test result on at least a weekly basis before coming to work. OSHA’s rule will also include a provision ensuring that employees receive paid time off for getting vaccinated and/or for recovery if they are under the weather post-vaccine.
In a briefing today, OSHA representatives stated that the rule (including more specific information) will be released in the coming weeks, though they did not specify how many weeks that might be. OSHA representatives indicated that the 100-employee count would be by company and not by location. The representative also stated that the rule would not apply to fully remote employees but would apply to employees who worked outside the office but interacted with others in the course of their work.
OSHA representatives acknowledged they were still working through certain issues, such as who would be responsible for the cost of weekly testing and how vaccination verification processes might work, but indicated those issues would be covered in the rule when it is issued.
OSHA representatives also stated that the rule would not determine how employers enforce the rule, meaning it would not specify that employers were required to terminate the employment of individual employees who refused both vaccination and weekly testing.
Executive Order Requiring Vaccines for Federal Employee and Federal Contractors
President Biden also issued two Executive Orders requiring that all federal employees and employees of contractors that do business with the federal government be vaccinated.
The Executive Order applicable to federal contractors and their employees will require future covered federal contracts to include clauses requiring compliance with guidance to be published by the Safer Federal Workforce Task Force. While it is not specifically stipulated in the language of the Order, President Biden stated this guidance will include vaccine mandates. The guidance will be issued by September 24 and will include “definitions of relevant terms” and “explanation of protocols” as well as any exceptions. The contract clauses are to start appearing in covered contracts (including renewals of existing contracts) by October 15, 2021.
The Order covers contractors and subcontractors of all tiers that are parties to federal contracts over $10,000 and applies to their workplace locations and employees in those locations working on or in connection with a federal contract. The definition of contracts and contract-like instruments is extremely broad and will encompass just about any agreement between two parties that imposes obligations on each party related to the procurement of services, concessions, construction, real estate leases, and the provision of services in connection with federal lands or property. However, there are some exceptions, including grants (which are not considered federal contracts for this purpose) and contracts below the Simple Acquisition Threshold as defined by the Federal Acquisition Regulations (currently, $250,000).
The Executive Order applies to all public and private employers, including schools and higher education institutions, that enter into covered contracts with the federal government. It is important to note that the Order applies only to employers who are parties to the types of contracts described above (in particular, grants are excluded). Employers should carefully review language of any contracts with the federal government to determine if compliance with the Executive Order is included in those contracts.
What does this mean for employers in Missouri and Illinois?
As noted above, state and local governments (including public employers) are exempt from OSHA and will not be subject to the OSHA vaccine mandate rule. Missouri does not have a state-corollary to OSHA, and thus, Missouri state and local governments (including public employers) are not covered by the forthcoming OSHA rule.
Illinois OSHA, however, does cover all state and local government workers and currently has adopted all OSHA standards for general industry, among others. Illinois OSHA has not yet issued vaccine mandates for covered workers or responded to President Biden’s announcement. It should be noted that Governor Pritzker’s Executive Order 2021-22 mandates that health care workers and public-school employees be vaccinated or submit to weekly testing.
If you are a private employer with more than 100 employees, you will need to comply with the new OSHA rule, once it is issued. Further, if you are an entity – public or private – that meets the definition of government contractor (specifically, has entered into a covered contract with a federal agency), it is likely that the contracts will now require your institution to comply with the forthcoming Safer Federal Workforce Task Force guidance, which will include a vaccine mandate.
Once the OSHA rule and Safer Federal Workforce Task Force guidance are issued, we will publish an updated insight with timing requirements and other pertinent details for employers. If you have questions about how this proposed plan might impact your institution, please contact a Tueth Keeney attorney.
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Mollie G. Mohan practices primarily in the areas of labor & employment, litigation, and higher education. Mollie represents colleges, universities, and private employers in labor and employment matters. Prior to joining the firm, Mollie worked at a large-sized litigation firm in Saint Louis. While in law school, Mollie was a student law clerk to the Honorable Jean C. Hamilton of the United States District Court for the Eastern District of Missouri.
Kate L. Nash is a shareholder of the firm and practices primarily in the areas of higher education, litigation, and labor and employment law. Kate acts as outside general counsel to numerous institutions of higher education, advising those organizations on a wide range of legal issues. In addition, Kate is frequently asked to conduct internal investigations regarding complex and sensitive matters in workplaces and at educational institutions. Kate also has extensive litigation experience litigation experience in federal and state courts and before federal and state administrative agencies. Kate is a frequent lecturer and author on employment and higher education issues and is active in the National Association of College and University Attorneys. She was an adjunct professor at Saint Louis University School of Law for numerous years, where she taught a course on non-profit organizations. Kate earned her B.A. from Cornell University and received her law degree at Washington University. Kate is a member of the Firm’s Management Committee.
Lisa Berns practices in the areas of real estate, lending and finance and corporate law. She has extensive experience representing clients in a variety of transactional matters, including the purchase, sale and leasing of office, industrial and retail properties, and construction of commercial properties. She has represented borrowers and lenders in complex financing transactions secured by major St. Louis office and retail properties, as well as transactions involving asset-based and cash flow loans. Her practice also has involved the foreclosure of commercial and consumer properties and workout negotiations. She has represented multiple Fortune 500 clients in the management of their owned and leased properties on a nationwide basis.
Christine Self practices in the areas of education law and employment law. She has developed employment policies and advised public employers on labor matters and laws such as the Freedom of Information Act and the Illinois Open Meetings Act. She has experience with collective bargaining and disciplinary investigations into employee misconduct. As a former public school teacher, she is committed to assisting schools navigate the legal requirements of the education environment so school leaders and educators can provide the best educational opportunities for students.