Frequently Asked Questions About the New COVID-19 Vaccine Executive Actions

September 20, 2021

Update (Oct. 18, 2021): The Federal Acquisition Regulatory (FAR) Council and federal agencies have taken an aggressive position in rolling out the federal contractor and subcontractor vaccination mandate — “encouraging” contracting officers to include the Executive Order clause in all federal contracts beginning Oct. 15, 2021 – including contracts for goods and other exceptions otherwise excluded by the executive order. For more details, please see our alert.

Update (Oct. 13, 2021): On Oct. 11, 2021, Texas Gov. Greg Abbott signed Executive Order No. GA-40 (EO), which prohibits any “entity in Texas” from compelling an employee or consumer to receive a COVID-19 vaccine. For more details and analysis see our alert.

Update (Sept. 27, 2021): On Sept. 24, the Safer Federal Workforce Task Force released new guidance on how that EO will operationally work and the locations and employees covered by it. See our Sept. 27 alert for more information.

Update (Sept. 23, 2020): In this alert we provide answers to some of the frequently asked questions raised during McGuireWoods’ Sept. 16, 2021 webinar, “COVID-19 Vaccine and Testing Mandates — New Requirements for Large Employers, Federal Contractors and Healthcare Organizations.”

As McGuireWoods noted in a Sept. 10, 2021, alert, President Biden’s broad six-part strategy to combat the COVID-19 pandemic is raising many questions for employers. While employers await the much-anticipated regulations, a few answers to questions regarding the proposed federal vaccine requirements already are available.

Q: Are the new federal rules in effect now?

A: No. Before the new rules take effect, various federal agencies must issue emergency temporary standards, guidance or rules to explain the details of the new federal mandates.

Q: Will the federal government require all workers to be vaccinated?

A: That is not part of the current plan. The plan addresses four types of employees: (1) federal government employees; (2) employees of certain federal contractors and subcontractors who perform work on or in connection with a covered contract; (3) employees who work for a company with 100 or more employees; and (4) healthcare workers at certain facilities that receive Medicare or Medicaid reimbursement.

Q: Which workers have the option to be tested rather than vaccinate?

A: The plan appears to allow employees of large employers (i.e., employers with 100 or more employees) to produce a negative test result for COVID-19 on a weekly basis rather than submit to vaccination. Federal employees, employees of certain federal contractors and subcontractors, and healthcare workers at certain facilities that receive Medicare or Medicaid reimbursement will not have the option to test rather than vaccinate, subject to reasonable accommodations that must be made for disability and/or sincerely held religious beliefs.

Q: Which federal contractors and subcontractors will be affected?

A: Federal contractors and subcontractors will be affected if they have: (1) a procurement contract or contract-like instrument for services, construction or a leasehold interest in real property; (2) a contract or contract-like instrument for services covered by the Service Contract Act; (3) a contract or contract-like instrument for concessions; or (4) a contract or contract-like instrument 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. Most supply contracts providing “goods” to the federal government (and similar subcontracts to federal prime contractors) are not covered. However, the new rules as announced will apply to prime contractors and subcontractors at any tier.

Q: How do I know if I employ 100 or more employees?

A: There are many unanswered questions regarding how employees will be counted, such as when will the count be made and who is included in the count. Subsequent agency guidance should clarify this question.

Q: Which healthcare workers will be affected?

A: The Biden administration’s announced plan states that the new laws will affect workers in “most healthcare settings that receive Medicare or Medicaid reimbursement,” including without limitation hospitals, dialysis facilities, ambulatory surgical settings and home health agencies. Information published by the Centers for Medicare and Medicaid Services suggests that the requirement will only apply to “certified” Medicare and Medicaid facilities. The CMS rule, once published, should clarify the scope of coverage.

Q: Will healthcare workers have the option to test rather than vaccinate?

A: No, it appears that healthcare workers will not be allowed to produce a negative test result for COVID-19 rather than submit to vaccination. However, employers will be required to provide reasonable accommodations to individuals with disabilities and religious objections to the vaccine, which may include a testing option.

Q: Who will pay for vaccinations, testing and the time associated with those activities?

A: The current plan does not address payments or reimbursements for vaccinations and tests. However, per the announced plan, the U.S. Department of Labor’s Occupational Safety and Health Administration is expected to issue an Emergency Temporary Standard requiring that large employers provide paid time off to employees for the time spent getting the vaccine and recovering if they are “under the weather” post-vaccination. Further, general Fair Labor Standards Act “hours worked” and overtime rules for non-exempt employees should still apply, such that time spent on vaccinations, testing and documentation must be paid.

Q: Where are answers to other questions?

A: On Sept. 16, 2021, McGuireWoods presented a webinar titled “COVID-19 Vaccine and Testing Mandates,” which provides additional analysis into some of the important questions surrounding the new program. A recording of the webinar and downloadable written materials are available. McGuireWoods is closely following OSHA, CMS and the Safer Federal Workforce Task Force for additional rules and guidance and will publish more answers when they are available. Please contact any of the authors of this article, other members of the firm’s COVID-19 Response Team or your McGuireWoods contact with questions.

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