September 13, 2021
Kif H. Skidmore
Counsel to the Firm, Stoll Keenon Ogden PLLC
Patrick M. Williams
Associate*, Stoll Keenon Ogden PLLC
On September 9, 2021, President Joe Biden signed two new Executive Orders as part of the federal government’s ongoing effort to lessen the impact of COVID-19. The President also announced sweeping plans to require many other larger employers to mandate vaccinations as a condition of employment. Business leaders continue to face the near-constant challenge of responding to these and other government actions that will undoubtedly have a significant impact on their operations.
Executive Order Requiring COVID-19 Vaccination for Federal Employees
This narrowly crafted Order mandates that each federal agency implement a program to require COVID-19 vaccination for all federal employees, with exceptions only as required by law. The Safer Federal Workforce Task Force, established earlier this year, will issue guidance on this agency implementation within seven (7) days of September 9, 2021.
Executive Order Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors
This broader Order will affect businesses that contract with the federal government. Specifically, this Order directs executive departments and federal agencies to include new clauses in federal contracts which will require compliance with guidance from the Safer Federal Workforce Task Force regarding COVID-19 vaccinations. This task force has until September 24, 2021 to publish this guidance. The Order targets October 8, 2021 as the date for federal agencies to implement these requirements, and targets October 15, 2021 as the date by which the new language will appear in new federal contracts, renewals of existing federal contracts, and potentially some current options contracts.
There are some types of contracts, such as grants, that are specifically exempted. Additionally, federal agencies have been encouraged, but not mandated, to ensure compliance with the new guidelines in existing contracts. The Safer Federal Workforce Task Force will be publishing new guidelines in the coming weeks.
Summary: Other Key Features of President Biden’s COVID-19 Vaccination Plan
Other features of the President’s vaccination initiative include the following:
- Directing the Occupational Safety and Health Administration (“OSHA”) to draft an emergency temporary standard directed at private-sector businesses with 100 or more employees to (a) mandate vaccination or weekly proof of negative test results, and (b) provide paid time off for the time it takes for workers to get vaccinated or to recover if they suffer post-vaccination effects;
- Requiring vaccinations for health care workers at Medicare and Medicaid participating facilities: and
- Calling on large entertainment venues to require proof of vaccination or negative test results.
The proposed emergency temporary standard imposing a vaccine mandate on private employers is especially significant, and critical questions surround both the scope of this standard and the legal basis for its promulgation. Litigation over these threshold issues is a certainty. Until OSHA actually issues the emergency temporary standard, employer efforts to begin compliance may not be necessary or prudent.
Another particular difficulty at this time is reconciling the text of the Executive Orders with commentary made by the President and other administration officials at press conferences and in the media. While these media statements may provide some insight about future policy and enforcement strategy, the actual text of the Executive Orders (and their implementing regulations and guidance) should be the focus of business leaders.
Stoll Keenon Ogden PLLC (SKO) understands that these are trying times for our clients and our country. Our firm operations have continued uninterrupted and our attorneys are equipped to serve as we always have – for more than 120 years.
Stoll Keenon Ogden’s Labor, Employment & Employee Benefits practice has a proven record of being trusted advisors and effective advocates. We help employers solve their problems through proactive counseling, employee training and, where possible, cost-efficient litigation, including alternative dispute resolution. We know the employment laws thoroughly, and we make it our goal to acquire a comprehensive knowledge of our clients and their business, so we can provide tailored solutions for each of their needs.
Please also be sure to consult the Stoll Keenon Ogden’s Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state and local governments in response to the Coronavirus pandemic.
* Kentucky Bar admission pending