Backend Category: Coronavirus

UA International Training Fund’s Preparedness Plan for In-Person Training

To MCAA members and JATC trustees considering attendance at events sponsored by the International Training Fund:

The Trustees of the UA International Training Fund (ITF) are committed to providing a safe and healthy workplace for all employees, instructors, and students participating in training events sponsored by the ITF.

To ensure safe and healthy training, the ITF has developed and adopted the following Preparedness Plan for in-person training that requires proof of COVID vaccination as a precondition of in-person participation.

The Plan applies to all in-person training events sponsored by the ITF in any location throughout the United States, including the upcoming Pipe Trades Training Conference, as well as Instructor Training Program, International Apprentice Contest and all Regional Training Classes.

Participants in any sponsored ITF event are responsible for complying with all aspects of the Plan.

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Biden Administration COVID Vaccination Mandates Update

Below are two items relevant to the Biden Administration’s recent COVID vaccination mandates.

The General Services Administration and the Civilian Agency Acquisition Council (CAAC) issued a broad Federal Acquisition Regulation Class Deviation for direct Federal Government Civilian Agency Contracting Officers to implement President Biden’s Executive Order 14042.

The executive order is for direct Federal prime contracts and subcontracts above the Simplified Acquisition (SAT) dollar threshold of $250,000. The CAAC letter reiterates that Federal agencies are required to include the clause – Far Part 52.223-99 Ensuring Adequate COVID-19 Safety Protocols For Federal Contractors, to be included in:

  • all contracts awarded on or after November 14, 2021 (based on solicitations issued before October 15, 2021) (including new orders issued on or after 10/14 under existing indefinite-delivery contracts based on solicitations issued before October 15th);
  • new solicitation issued on or after October 15, 2021, and new contracts (and indefinite delivery pacts) entered into based on those solicitations;
  • extensions or renewals or options on existing contracts exercised on or after October 15, 2021.

The CAAC Letter also “strongly encourages” (but does not require) Federal agencies to include the COVID-19 vaccination requirement clause in contracts that will be awarded before November 14th on solicitations issued before October 15th  and to include the requirements on prime and subcontracts under the $250,000 SAT.

The clause itself requires covered prime contractors and subcontractors to comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor and subcontractor workplace locations published by the Safer Federal Workforce Task Force Guidance at https:www.safefederal workforce.gov/contractors/.

The clause incorporates automatic adoption of yet-to-be issued requirements published by the Federal SFW Task Force.

The clause also clarified that the prime contract flow-down of the requirements applies only to subcontracts above the SAT of $250,000, with the caveat of the strong suggestion of broader application noted above.

It remains to be determined what, if any, further guidance may be issued by the full Federal Acquisition Regulatory Council.

CAAC Letter

Frequently Asked Questions About Affordable Care Act Implementation Part 50, Health Insurance Portability and Accountability Act and Coronavirus Aid, Relief and Economic Security Act Implementation. (CCIIO OG MMRD 1808, October 4, 2021)  The Department of labor, Health and Human Services Administration and Department of Treasury revised and updated their FAQs on the ACA, HIPAA, and CARES Act implementation guidance to address health plan coverage of COVID vaccination expenses, the permissibility of allowing health plan wellness incentives for vaccinations, and the impermissibility of denying health plan eligibility and coverage to unvaccinated participants.

Revised FAQs Part 50

COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors Issued September 24, 2021 by the Safer Federal Workforce Task Force

The Safer Federal Workforce (SFW) Task Force, established by President Biden in Executive Order 13991 (January 20, 2021), issued COVID-19 Safety Guidance on September 24, 2021, in furtherance of the Federal prime contractor and subcontractor vaccination mandate issued by the President in Executive Order (EO) 14042 on September 9, 2021. 

That EO also was accompanied by a Presidential order directing OSHA to create a similar (but not identical) vaccination and testing regime in an OSHA Emergency Temporary Standard that would cover all employers (irrespective of Federal contract status) with over 100 employees. And these parallel executive mandates operate in conjunction too with respect to COVID vaccination, testing and social distancing and masking rules that pertain to Federal agency personnel worksites, where covered private sector employers may be working.

Below is a digest of the SFW Task Force Guidance pertaining to direct Federal agency prime contractors and subcontractors (irrespective of employee numbers) at all lower tiers on covered Federal contracts. 

Contract Coverage

The Task Force Guidance requires COVID-19 vaccination of all Federal prime contractor and subcontractor personnel working on or in relation to direct Federal contracts with Federal agencies above the current Federal Simplified Acquisition Threshold of $250,000. It applies to contracts entered into on solicitations issued on or after October 14, 2021, and to contract extensions or options exercised on existing covered contracts issued on or after that date.

Regulatory Procedure

Coincident with release of the SFW Task Force Guidance, the OMB exercised its ratification of the regulatory purpose called for in EO 14042.

In a release dated September 24, 2021, Office of Management and Budget (OMB) Deputy Director for Management, Jason Miller, declared: “Pursuant to the order [EO14042], the Director of the Office of Management and Budget has determined that compliance by Federal contractors and subcontractors with the COVID-19 workplace safety protocols detailed in the Task Force’s Guidance will promote economy and efficiency in Federal contracting. These safeguards will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal government.”

The Guidance is now subject to regulatory action by the Federal Acquisition Regulatory (FAR) Council, which has until October 8, 2021, to issue FAR contract language implementing the Guidance, which is to be included in FAR contract solicitation and contract extensions and option renewals beginning on October 14, 2021. The requirements will apply to new contracts awarded on or after November 14, 2021. Covered employers and employees will have until no later than December 8, 2021, to become “fully vaccinated.”  After December 8th, all covered employees must be fully vaccinated on the first day of performance of a covered new contract, or extension or option on an existing covered contract. (As of this date, “fully vaccinated” means initial approved one- or two-shot regime – currently, booster shots are not included.)

Specific Requirements

The Guidance requires the following three primary elements:

  • Full vaccination of all covered employees. Exception noted only for narrowly defined legal accommodations. The Guidance says a covered contractor may be required [emphasis added] to provide an accommodation if the employee claims a medical/disability bar to vaccination or expressed opposition to vaccination based on a sincerely held religious belief. The type of accommodation is not spelled out. Testing is not specifically mentioned.
  • Masking and social distancing – The Guidance sets out specific masking and social distancing as applied to covered workplaces.
  • Appointment of specific compliance personnel – The Guidance requires covered employers to appoint specific compliance personnel to implement the requirements.

Employee Coverage

The Guidance covers both full and part time employees working on or in relation to covered contracts – in construction that would be the job site and off-site home office personnel. The vaccination requirement also applies to employees working at home who are employed to work on or in relation to the covered contract – masking and social distancing would not bear on that home work location.

The Guidance does not address the question of payment for the vaccine, or any time off for adverse physical reaction to the vaccination.  The Guidance does not offer regular weekly testing as an explicit alternative to testing or as an accommodation for valid exceptions.  Neither does the Guidance address paid time off for testing, if that is allowed as an acceptable accommodation, or payment for that testing. 

Some or all of these issues are present in the OSHA ETS development. MCAA has taken the position that paid time off for testing, if and when it may be allowed in lieu of vaccination, is entirely counterproductive to the goal of maximizing vaccination of the entire workforce. Both paid time off for testing, and employer pay for testing, is a disincentive to widespread vaccination acceptance – which is the goal of the recent Executive actions, and fully in line with the UA/MCAA Message on vaccination.

Specifics on Vaccines

The Guidance requires covered employees to be “fully vaccinated” by the effective date of performance. “Fully vaccinated” is defined as two weeks after a one- or two-shot course of a currently  approved vaccine under US Food and Drug Administration (FDA) or World Health Organization approvals – set out as: Pfizer-BioNTech, Moderna, Johnson & Johnson/Jansen, AstraZeneca/Oxford, and one trial vaccine candidate – Novavax COVID-19.

The vaccination rules apply to outdoor work. Prior COVID infection or proof of COVID antibodies is not a permissible exception. Worker attestation of vaccination is not acceptable documentation. Documentation of vaccination is to be presented in provider vaccination cards or vaccination records from health department records.

Other Potential Issues and Clarifications

The Frequently Asked Questions (FAQ) section of the Guidance raises some key complicating issues and the need for ongoing regulatory clarification.

For example, Question 16 of the Guidance Frequently Asked Questions (p. 12 of the Guidance, asks:  If the Safer Federal Workforce Task Force updates the Guidance to add new requirements, do those requirements apply to existing contracts?  A.  Yes.  Covered contractors are required to, for the duration of the contract, comply with all Task Force Guidance for contractor of subcontractor workplace locations, including any new Guidance where the OMB Director approves the Guidance and determines that adherence to the Guidance will promote economy and efficiency in Federal contracting. The Task Force and OMB plans to ensure any workplace safety protocols reflect what is necessary to decrease the spread of COVID-19.”

This element of the Guidance raises the current question of whether and how the Government agency should equitably compensate contractors for COVID impact costs, imposed either before or after contract award. MCAA has been advocating for a COVID impact cost equitable adjustment mandate from OMB to Contracting Officers on existing contracts entered into pre-COVID and performed post- COVID. MCAA also is pressing for a FAR COVID cost escalation adjustment contingency clause in all contracts going forward to avoid across-the-board bid contingencies anticipating just such post-award added COVID compliance mandates on Federal contract and subcontract work performance.

These issues too are raised in Question 20 – Can a covered contractor comply with the workplace safety requirements from the Occupational Safety and  Health Administration, including pursuant to any forthcoming Emergency Temporary Standard related to COVID-19, instead of the requirements of the guidance?  A. No. Covered contractors must comply with the requirements set forth in this Guidance regardless of whether they are subject to other workplace safety standards.

This answer sets up the same issues with regard to paid time off for testing.  If the OSHA ETS permits testing in lieu of vaccination (the Task Guidance does not permit testing in lieu of vaccination) – and then should go on to require that OSHA ETS covered employers (100+ employees) must  pay for the testing and time off for testing, then the question is would that cost be recoverable under the FAR COVID cost contingency clause (if there is one in the FAR contract) since it’s required by OSHA – not the Federal Contract Guidance directly. Ideally, the Federal contracting COVID cost recovery equitable adjustment measure MCAA is pressing for should – in the extension of the equitable recovery – permit recovery of the OSHA ETS costs incurred by covered Federal prime contractors and subcontractors.

Note: The Guidance encourages agencies to apply the requirements to contracts for products (currently not covered) and to otherwise covered contract actions below the $250,000 threshold. It should be noted that the Guidance applies to all covered firms irrespective of employment levels; the OSHA ETS has a 100 plus employee threshold. Regular testing in lieu of vaccination is not an option under the Guidance, but it is under the OSHA ETS executive action. Who pays for that testing and time to take the tests remain to be determined in the OSHA rulemaking. Certainly, paid time off for testing in lieu of vaccination would not be in line with the regulatory rationale under the Federal Property and Administrative Services Act underlying the Guidance – promoting economy and efficiency of Federal contract performance.

Enforcement

The enforcement regime for the COVID-19 vaccination mandate on Federal contracts is the same as it is for any other FAR mandate and flow-down clause.  In the first instance the Contracting Officer has oversight of the prime contractor performance, and the flow-down to subs and sub-subs is left to the lower tier parties. This is stated in the Guidance FAQ as follows: 

“Q. What is the prime contractor’s responsibility for verifying subcontractors are complying with the mandate? A. The prime contractor is responsible for ensuring that the required clause is incorporated into its first-tier subcontracts in accordance with the implementation schedule set forth in Section 6 of the order [EO 14042 is the Effective Date schedule]. When the clause is incorporated into a subcontract, a subcontractor is required to comply with this Guidance and the workplace protocols detailed herein. Additionally, first-tier subcontractors are expected to flow the clause down to their lower-tier subcontractors in a similar fashion so that accountability for compliance is fully established throughout the Federal contract supply chain for covered subcontractor employees and workplaces at all tiers through application of the clause.”

Note: The Guidance does not require flow-down to material supply (products) providers on covered contracts. There is some speculation that the FAR regulations might do that. Also, further specificity on some of these issues might come out in the FAR regulations due October 8.

Below are links to the SFW Task Force Guidance (including the Frequently Asked Question elaboration) and related OMB announcement of ratification.

SFW Task Force Guidance/FAQ
OMB Announcement of Ratification

MCAA will continue to track and report regulatory developments on these issues affecting MCAA member forms as developments warrant.

MCAA will be presenting a webinar on these issues shortly after the FAR regulations are released. Watch MCAA.org for an announcement.

MCAA’s Safety & Health Initiative Highlights OSHA & CMS Response to the Vaccination Mandates

MCAA’s Safety & Health Initiative explains how the Occupational Safety & Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) are responding to the new vaccination mandates projected to affect two-thirds of American workers.

Last week the White House announced a national strategy to combat the COVID-19 pandemic. During the speech, President Biden announced two Executive Orders and certain administrative actions that will increase mandates for vaccination in both government and private workplaces. Altogether, the vaccine requirements announced on September 9, 2021, are projected to affect about 100 million Americans, or two-thirds of American workers.

What You Need to Know

  • Vaccination Requirements for Employers with 100+ Employees – OSHA is developing an Emergency Temporary Standard (ETS) to require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
  • Vaccination Requirements for Federal Employees and Federal Contractors – Directs agencies to implement a program to require COVID-19 vaccination for all Federal employees by November 22, 2021.
  • Vaccination Requirements for Health Care Facilities – The Centers for Medicare & Medicaid Services (CMS) will require COVID-19 vaccinations for workers in most health care settings.

See the full memo, provided by our consultants at Alston & Bird, for the basic facts and an outline of the Biden Administration Executive Actions last week.

Digest of the Biden Administration’s Executive Order 14042 and Copy of the EO

The Biden Administration’s Executive Order Ensuring Adequate COVID Safety Protocols for Federal Contractors, Executive Order 14042 issued September 9, 2021, applies to direct Federal prime contracts above $250,000 and all lower tier subcontracts for work performed at the project site and facilities where work is performed pertaining to covered prime contracts and subcontracts. It does not apply to Federally assisted contracts or suppliers on covered prime contracts. The EO pertains to both prime and subcontractors, irrespective of total employment, while the other Biden Administration EO on vaccination applies to all employers (Federal contractors or subcontractors or otherwise) who employ 100 or more workers. MCAA will keep you apprised on regulatory developments along this ambitious and unique regulatory schedule.

The primary elements of the Executive Order are:

  • It is based on the President’s authority on the Federal Property and Administrative Services Act to promote economy and efficiency in government contracting. 
  • It provides that all prime contractors and lower tier subcontractors shall incorporate contract provisions that comply with the [yet to be developed] guidance to be published by the Safer Federal Workforce Task Force that are subsequently ratified by the Office of Management and Budget (OMB). 
  • It sets a target of September 24, 2021 for the Task Force’s initial guidance, and then calls for OMB ratification and publication of same in the Federal Register. 
  • After that, the Federal Acquisition Regulatory Council is tasked with amending the Federal Acquisition contract provision in line with the approved guidance by October 8, 2021, for inclusion in contract actions (new contracts, and existing contract extensions) above the $250,000 FAR Simplified Acquisition threshold by October 15, 2021.

MCAA and the UA Issue Message Supporting COVID Vaccination

MCAA President Armand Kilijian and UA General President Mark McManus issued a message highlighting the importance of the COVID vaccine to protect not only ourselves and our families, but our jobsites, our fellow members and contractors, and our end users.

OSHA Releases COVID-19 ETS Inspection Procedures & Enforcement Policies

OSHA recently released a compliance directive titled Inspection Procedures for the COVID-19 Emergency Temporary Standard. The directive is a guide for compliance officers implementing inspections and issuing citations involving:

  • Employer COVID-19 Plans;
  • Screening and Management;
  • Standard and Transmission Based Precautions;
  • Personal Protective Equipment;
  • Aerosol-Generating Procedures;
  • Physical Distancing;
  • Cleaning and Disinfecting;
  • Ventilation;
  • Employee Health Screening and Medical Management;
  • Vaccinations;
  • Training;
  • Anti-Retaliation;
  • Requirements at No Cost;
  • Recordkeeping; and
  • Reporting to OSHA.

If OSHA’s new Emergency Temporary Standard (ETS) on COVID-19 applies to your company, it may be helpful to understand what the agency’s compliance officers are looking for when they are inspecting affected workplaces, and how they are directed to issue citations for violations of the standard.

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Withum Webinar Will Share What All Businesses Need to Know About ERC and PPP

Pandemic legislation has created significant opportunities for small and medium sized businesses. Rules ever changing, the programs have been shaped time and time again. Spend one hour with Withum experts as they detail some of the programs which have been most beneficial to businesses. The free webinar takes place June 28, 2021 from 2:00 pm – 3:00 pm EDT.

Learning Objectives

During this session, we will cover the most up-to-date details on the following:

  • Paycheck Protection Program – Analyze lessons learned and understand best practices and pitfalls to avoid. We will also discuss the current status of loans in review with the SBA.
  • FFCRA Credits – Identify the payroll tax credits available to employers compensating employees for sick and family leave time, as well as updates to the program regarding absences related to employees receiving the vaccine.
  • Employee Retention Credit – Clarify changes in the program rules and regulation, and review of your businesses’ eligibility is a must. Our team will have a detailed discussion on eligibility and the opportunity available. We will also discuss the important consideration of the interplay between the ERC and the PPP Loan Forgiveness Calculation.

We want to ensure that any questions around either of these relief efforts are clarified. Our experts can assist with further calculations and opportunities following the webinar.

Presenters 

  • Frank Boutillette, CPA, CGMA, Partner, Market Leader, SBA Financial Assistance Services
  • Daniel Mayo, JD, LLM, Principal, National Lead, Federal Tax Policy
  • Matthew Walsh, CPA, MS, Lead, SBA Financial Assistance Services
  • Louis Young, CVA, Dealership Services, SBA Financial Assistance Services

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OSHA COVID-19 ETS & New Guidance for Employers Not Covered by the Standard

OSHA recently released an Emergency Temporary Standard (ETS) on COVID-19 covering settings where employees provide healthcare services or healthcare support services. Contractors providing healthcare support services, such as equipment and facility maintenance, may have to comply with several provisions in the ETS, such as establishing a COVID-19 plan, implementing precautions, requiring use of personal protective equipment, practicing physical distancing, using physical barriers, cleaning and disinfecting surfaces, implementing health screening and medical management, supporting COVID-19 vaccinations, and providing appropriate training.

However, the standard does not apply to “well-defined hospital ambulatory care settings” where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings. Ambulatory care means healthcare services performed on an outpatient basis, such as physician’s offices, hospital outpatient departments, ambulatory surgical centers, and specialty clinics. Affected employers must comply with most provisions of the standard within 14 days, and with the remaining provisions within 30 days. OSHA will use enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS.

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Contractors whose employees are not providing healthcare support services are exempt from the ETS. However, OSHA has updated their guidelines for employers based on the most current guidance from the CDC. Employers are urged to comply with the updated guidelines, which direct employers to:

  • Grant paid time off for employees to get vaccinated;
  • Instruct workers who are infected, unvaccinated workers who have had close contact with someone who tested positive, and all workers with COVID-19 symptoms to stay home from work;
  • Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
  • Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks;
  • Educate and train workers on your company’s COVID-19 policies and procedures;
  • Suggest that unvaccinated customers, visitors, or guests wear face coverings;
  • Maintain ventilation systems;
  • Perform routine cleaning and disinfection;
  • Record and report COVID-19 infections and deaths;
  • Implement protections from retaliation;
  • Set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
  • Follow other applicable mandatory OSHA standards.

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OSHA Releases ETS on COVID-19 and Healthcare Facility Ventilation Requirements

OSHA’s recently presented Emergency Temporary Standard on COVID-19 (ETS) describes specific requirements for healthcare facility ventilation systems. The requirements apply to employers who own or control buildings or structures with an existing heating, ventilation, and air conditioning system(s) where employees provide healthcare services or healthcare support services. If your company provides HVAC services for an affected employer, the ventilation provision in the ETS may be helpful. LEARN MORE

Stay Prepared with Cohen Seglias’ Material Cost Escalation Package

Every day, the construction attorneys at Cohen Seglias are approached by clients as to how to address the current crisis due to the significant fluctuation in pricing in construction materials, equipment, and energy. Whether the product in question is steel, copper, glass or lumber, we have seen prices rise since the re-opening of the economy with some commodities hitting a 100% price increase according to some indices. Who is responsible for the burden of the price increases? Unfortunately, like with COVID-19, owners, construction managers, contractors, and subcontractors are all arriving at different answers. 

The Construction Contracts & Risk Management Group at Cohen Seglias has prepared sample notice letters for use on jobs where construction has or is about to resume under pre-existing contracts. We are also providing you with language to add to your change orders and monthly releases. Also, we have included sample language to place in your contracts and proposals to help protect you in the event of a future price escalation. These are extremely difficult clauses to negotiate. 

Understand that these forms may need to be revised to fit your particular circumstances. The attorneys of Cohen Seglias stand ready to provide you with assistance, when needed.

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OSHA Suspends Recordkeeping Enforcement of Adverse Reactions to Employer Mandated COVID-19 Vaccinations

MCAA reported previously that if your company requires a worker to get vaccinated and that worker has an adverse reaction to the vaccine, and the results of the adverse reaction meet the criteria for an OSHA recordable injury (medical treatment beyond first aid, days away from work, etc.), OSHA considers the case to be “work-related,” and employers are required to treat the case as a “recordable illness.”

The DOL, OSHA, and other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to discourage workers from receiving the COVID-19 vaccination, or disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022. The agency will reevaluate the agency’s position at that time to determine the best course of action moving forward.

Are Vaccinated Workers Exempt From COVID-19 Infection Control Measures?

OSHA is reviewing recent CDC guidance and will update their website accordingly. However, until those updates are completed, the agency is referring affected employers to the “CDC guidance for information on measures appropriate to protect fully vaccinated workers.” The highlights of the guidance published by the CDC follow.

If you’ve been fully vaccinated:

  • You can resume activities that you did prior to the pandemic.
  • You can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
  • If you travel in the United States, you do not need to get tested before or after travel, or self-quarantine after travel.
  • If you’ve been around someone who has COVID-19, you do not need to stay away from others or get tested unless you have symptoms.
  • You should still watch out for symptoms of COVID-19, especially if you’ve been around someone who is sick. If you have symptoms of COVID-19, you should get tested and stay home and away from others.
  • People who have a condition or are taking medications that weaken the immune system, should talk to their healthcare provider to discuss their activities. They may need to keep taking all precautions to prevent COVID-19.

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Mask Mandates Are Falling – What Are Employers To Do?

On May 13, 2021 the CDC unexpectedly recommended that, with limited exceptions, fully vaccinated individuals can resume all indoor and outdoor activities without wearing masks or social distancing, except where required by law or workplace guidance. In response to the confusion created by differing State and Federal guidelines, Lindabury, McCormick, Estabrook & Cooper, P.C. has prepared an overview for employers so they can create policies for addressing the vaccination status of their employees.

Loosening of CDC’s Face Covering Recommendations Do Not Alter Employer Compliance Obligations

The CDC recently changed its COVID-19 recommendations regarding the use of face coverings for fully vaccinated individuals. Under the new guidance, fully vaccinated individuals, in most cases, no longer need to wear face coverings indoors or out, or practice social distancing. However, the loosening of the recommendations does not change affected employers’ compliance obligations. Masks and distancing are still mandatory “where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” Employers should be aware that OSHA recently implemented a special emphasis program to enforce worker COVID-19 protections.

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What to Consider Before Requiring Workers to Get COVID-19 Vaccinations

In most states employers may legally require their workers to get COVID-19 vaccinations, provided that they make reasonable accommodations for medical or religious objections. However, doing so could result in negative consequences, so there are several items your company should consider before deciding whether to require their workers to get vaccinated.

  • If your company requires a worker to get vaccinated and that worker has an adverse reaction to the vaccine, and the results of the adverse reaction meet the criteria for an OSHA recordable injury (medical treatment beyond first aid, days away from work, etc.), OSHA considers the case to be “work-related.” Employers are required to treat the case as a “recordable illness;”
  • If your company requires a worker to get vaccinated and that worker has an adverse reaction to the vaccine, in some states the case could result in a worker’s compensation claim. Be sure to check with your worker’s compensation carrier before you proceed;
  • If your company requires a worker to get vaccinated and that worker has an adverse reaction to the vaccine, and the case is not covered by worker’s compensation the employer may be subject to a lawsuit;
  • Some states may prohibit employers from mandating the vaccines; and
  • Mandating vaccines may violate local collective bargaining agreements.

Adverse Reactions to Employer Mandated COVID-19 Vaccines Are OSHA Recordable Cases

If your company is requiring its employees to get vaccinated against COVID-19 it runs the risk of acquiring recordable illness cases. Recent revisions to OSHA’s frequently asked questions (FAQs) and answers related to the coronavirus disease 2019 (COVID-19) pandemic indicates that OSHA considers employees’ negative reactions to the COVID-19 vaccines to be “work-related” and therefore, subject to recordkeeping and reporting mandates when an employer “requires” the vaccination. The question and answer from the updated FAQs follows.

If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable? If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.

Updated FAQs

Post COVID-19 Vaccine Jobsite Safety Guidelines

According to the CDC, COVID-19 vaccines are safe and effective. Some individuals may experience side effects, but they are typically short lived. For the most part, the benefits of the vaccine far outweigh the short lived side effects. With more Americans receiving the vaccines every day it is important to start planning for the post vaccine era. These guidelines are intended to help you do just that, but it is likely that they will change several times over the coming months, so please continuously watch for updates from MCAA.   

What We Do NOT Know About the Vaccines

There is still much that we do not know about the vaccines, so even fully vaccinated individuals need to follow COVID-19 safety protocol while working just about anywhere. Here is why:

  • We do not know whether the vaccines keep vaccinated individuals from spreading the virus;
  • We do not know how long the vaccine protects vaccinated individuals against the virus; and
  • We do not know how effective the vaccines are against variants of the virus.

Fully Vaccinated Individuals

An individual is “fully vaccinated” when he or she has had both doses of the Pfizer or Moderna vaccines, or a single dose of the Johnson & Johnson vaccine, AND two full weeks have passed since the last injection.

Fully Vaccinated Individuals at Work

Fully vaccinated employees on jobsites, in fabrication shops, in office buildings and in other public areas performing regular duties that do not require specialized or additional personal protective equipment should:

  • Wear a two-ply face covering that completely covers the nose and mouth;
  • Practice proper hand hygiene by frequently washing hands and/or using hand sanitizers; and
  • Maintain a social distance of at least 6 feet from all other individuals.

When social distancing requirements must be suspended, such as when two workers are needed for the safe manual handling of materials, the affected workers should continue to wear their face coverings, don face shields, wear work gloves, and limit the amount of time they will be working together closer than 6 feet to less than 15 minutes.

Employers

Affected employers should:

  • Require all employees to comply with the protocol;
  • Enforce employee compliance with the protocol; and
  • Ensure that routine environmental cleaning is performed on affected surfaces at least once daily and more frequently when needed.

More frequent cleaning or disinfection should be performed if/when:

  • There is a high transmission of COVID-19 in or around a workplace;
  • The workplace is in an area where people are not wearing masks;
  • The frequency and/or quality of hand hygiene is inadequate for any reason; and/or
  • Individuals with increased risk of severe illness from COVID-19 are working in the area.

Fully Vaccinated Individuals Not Working

Once fully vaccinated, individuals outside the workplace can start to do some of the things that have not been acceptable since the pandemic began, such as:

  • Visit inside a home or private setting without a mask with fully vaccinated people of any age;  
  • Visit inside a home or private setting without a mask with one household of unvaccinated people who are not at risk for severe illness;
  • Travel domestically without a pre-or post-travel test;
  • Travel domestically without quarantining after travel;
  • Travel internationally without a pre-travel test depending on the destination; and
  • Travel internationally without quarantining after travel.

GUIDELINES PDF

CDC Alters Guidelines on Facility Cleaning & Disinfection for COVID-19

The CDC has revised its guidelines regarding cleaning and disinfecting surfaces to prevent the spread of COVID-19. The virus that causes COVID-19 can land on surfaces, and it’s possible for people to become infected if they touch those surfaces and then touch their nose, mouth, or eyes. However, it has been determined that the risk of infection from touching a surface is low. The CDC now believes that the most reliable way to prevent infection is to regularly wash hands and use hand sanitizers. When there have been no confirmed or suspected cases of COVID-19 in a given space, cleaning only once a day is usually enough to sufficiently remove the virus from surfaces in the space.

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