October 12, 2021

By: Jacob W. Scott Partner and Jeanne M. Harrison Associate, Smith Currie & Hancock LLP.

On September 9, 2021, the Biden administration took two significant steps designed to reduce the spread of COVID-19. The President called on the U.S. Occupational Safety and Health Administration (OSHA) to develop and implement the Emergency Temporary Standard (ETS) for employers with 100+ employees. Under the ETS, employers must require employees to be fully vaccinated or subject to COVID-19 testing at least once per week. Employers can face fines up to $14,000 per violation. The President also issued an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO). The EO requires contractors and subcontractors at all tiers to comply with government-issued COVID-19 safety protocols.

COVID-19 ETS for Employers with 100+ Employees

It will likely take OSHA several weeks to develop the new COVID-19 ETS. In the interim, employers can look to the existing COVID-19 ETS for healthcare workers as guidance. OSHA also provides guidance for employers not subject to the healthcare ETS.

The existing ETS tasks employers with providing employees support for vaccination and testing. For any employee who wishes to get vaccinated, an employer must provide reasonable time and paid leave for the vaccination as well as for any side effects after vaccination. If an employee requires a COVID-19 test, the employer must provide it at no cost to the employee.

Employers must also develop and implement a written plan to address the hazards of COVID-19 in the workplace and minimize the risk of transmission of COVID-19 in the workplace. Each employer must also have at least one COVID-19 safety coordinator to implement the employer’s COVID-19 plan.

The healthcare ETS requires employers to train employees on the spread of COVID-19, the importance of hygiene and following employer requirements for masking or use of other personal protective equipment, risk factors, and when to seek medical attention. The training must also address the employer’s COVID-19 policies and procedures, workplace cleaning and disinfecting procedures, employer health screening, and information about COVID-19-related sick leave and other benefits to which an employee may be entitled under federal, state, and local laws.

The healthcare ETS imposes stringent recordkeeping requirements on employers. An employer must retain all copies of its COVID-19 plan. An employer must also create and maintain a COVID-19 log to record each positive COVID-19 diagnosis of an employee, regardless of whether the exposure occurred at the workplace. Each instance in the COVID-19 log must contain the following: employee’s name, employee’s contact information, employee’s occupation, location where the employee worked, date that the employee was last at the workplace, date of the positive test or diagnosis of COVID-19, and the date of the employee’s first COVID-19 symptom. An employer must record all necessary information in the COVID-19 log within 24 hours of the employer learning that the employee is COVID-19 positive and must not disclose any information except as required by federal law. Employees, their personal representatives, and authorized representatives must be provided access to the employer’s COVID-19 plan and log within one day of making the request. In such cases, the provided COVID-19 log must be redacted to omit employees’ names, contact information, and occupations.

The COVID-19 ETS for employers with 100+ employees may differ in details from the existing healthcare ETS. But until such time that OSHA implements the new ETS, employers with 100+ employees should review existing OSHA guidance as well as the healthcare ETS and begin preparing to implement its major components, including preparing a COVID-19 plan and creating COVID-19 training for employees.

Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors

The new EO seeks to ensure that contractors “provide adequate COVID-19 safeguards for their workforce ….” Effective immediately, every new federal contract or contract-like instrument (a phrase we addressed previously related to the contractor minimum wage here and here) must include a clause stating that the contractor will follow guidance to be issued by the Safer Federal Workforce Task Force (Task Force Guidance). The clause must be flowed down to subcontractors at every tier and applies to anyone “working on or in connection with” a federal contract. That means that ancillary employees, such as back-office personnel and off-site contractor employees, will also be subject to the Task Force Guidance.

By September 24, 2021, the Task Force will publish “definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance,” and any exceptions to the Task Force Guidance.

The contract clause will be required in all new contracts covered by the Federal Acquisition Regulation (FAR), as well as extensions and options, entered into on or after October 15, 2021. The EO also instructs agencies to include the clause in non-FAR contracts to the extent permitted by law no later than October 15, 2021. Agencies are also strongly encouraged to include the new clause to existing contracts to the extent permitted by law.

What the Task Force Guidance will ultimately include remains unknown, but it will be published in the Federal Register once approved by the Director of the Office of Management and Budget. In light of the Executive Order requiring all federal employees to be vaccinated, also issued on September 9, 2021, contractors should expect the Task Force Guidance to require vaccination of contractor employees. Even contractors exempt from the new EO may still be required to comply with OSHA’s pending COVID-19 ETS for employers with 100+ employees.

Smith Currie provides comprehensive legal services to all parts of the construction industry across the nation. Smith Currie lawyers have decades of demonstrated success representing construction and federal government contracting clients “From the Ground Up,” including procurement matters, contract formation and negotiation, project administration, claims prosecution and, when necessary, in litigation and other forms of dispute resolution.

The  views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.