On November 30, 2021, a federal district court in Kentucky issued a preliminary injunction pausing enforcement of the federal government’s COVID-19 vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee. See Commonwealth of Kentucky, et al. v. Biden, No. 3:21-cv-00055 (E.D. KY, Nov. 30, 2021). The decision largely focused on whether President Biden exceeded his authority when he issued Executive Order 14042, which mandated compliance with guidance issued by the Safer Federal Workforce Task Force regarding COVID-19 safeguards for federal contractors and subcontractors. The Court held that he did.

The authority to manage federal procurement is delegated to the President through the Federal Property and Administrative Services Act (FPASA). Using FPASA, President Biden promulgated Executive Order 14042 and directed that the Task Force issue its guidance mandating COVID-19 vaccinations for those who contract with the federal government. However, the Court noted that the delegation is not a blank check for the President to “fill in at his will” and instead that there must exist a close nexus between the Order and the objectives of FPASA – increasing economy and efficiency in procurement. Here, the Court made clear that it believes the link is tenuous at best.

The Court likened the vaccine mandate for federal contractors to a refusal to contract with contractors who employ individuals over a certain BMI, or with businesses who work in crowded indoor office spaces. All are related to decreasing risk related to COVID-19, but they are actually public health regulations, not efforts focused on increasing economy and efficiency in procurement. Accordingly, the Court rejected the government’s position that a close nexus exists between economy and efficiency in procurement and the vaccine mandate.

The Court also noted other potential issues in the government’s case, including that the vaccine mandate may exclude certain contractors from bidding on jobs in violation of the Competition in Contract Act, that mandating vaccination is a decision that should be left to Congress (or, more appropriately, the States) that it violated the nondelegation doctrine, and that the mandate may have intruded into an area reserved for the States by the Tenth Amendment.

Holding that the plaintiffs are likely to succeed on their case, and that contractors in the relevant states would be irreparably harmed without an injunction, the Court enjoined the federal government from enforcing its vaccine mandate. However, the Court declined to issue a nationwide injunction and instead focused on the three states who brought the suit.

The Commonwealth of Kentucky case will proceed, and an appeal is likely. Upon appeal, the District Court’s decision would be heard by the Sixth Circuit Court of Appeals. As noted in our November 17, 2021 blog article, the Sixth Circuit also was selected by lottery to hear the Multidistrict Litigation regarding the legal challenges to the OSHA Emergency Temporary Standard for larger private-sector employers.

For now, covered contractors in Pennsylvania and all states other than Ohio, Kentucky and Tennessee should continue with their plans to comply with EO 14042 and the Task Force Guidance, which currently has a January 4, 2022 deadline for employees of covered federal contractors and subcontractors to be vaccinated. However, challenges to this vaccine mandate will continue to work their way through the courts for the near future.  We will continue to monitor for further developments and will provide updates as events dictate. For more information on COVID-19 vaccine requirements or the related legal challenges, contact any member of the McNees Labor & Employment Group.

On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) requiring, among other things, that most employees of companies with 100 or more employees submit to weekly COVID-19 testing and wear a face covering while at work indoors. We summarized the ETS in a previous post.

Almost immediately after it was published, the ETS sparked a wave of lawsuits challenging OSHA’s authority to issue such a sweeping mandate without engaging in notice and comment rulemaking.  In fact, through November 15, 2021, lawsuits were pending in 12 different federal Circuit Courts of Appeals across the country.

The Multi-Circuit Lottery

When lawsuits are filed in multiple Circuit Courts challenging the same agency action, the lawsuits will be consolidated before one Court of Appeals, to be selected in a “lottery” conducted by the U.S. Judicial Panel on Multidistrict Litigation (“JPML”).  The JPML held the lottery in the ETS cases on November 16, 2021.  And the winner is . . . the U.S. Court of Appeals for the Sixth Circuit, which will hear the consolidated cases and ultimately decide whether the ETS is a valid exercise of OSHA’s authority.

Before the multi-circuit lottery was held, however, one of the circuits wherein challenges were filed – the Fifth Circuit – issued a temporary stay of the ETS. On November 12, 2021, the Fifth Circuit issued an opinion, which serves as a strong critique of the ETS and lays out several reasons why that Court believed the challenges are likely to succeed, any one of which would be sufficient reason for the Sixth Circuit to vacate the ETS.

The Fifth Circuit Opinion

First, the Fifth Circuit observed that OSHA’s authority to establish emergency temporary standards under 29 U.S.C. § 655(c) – which it may do without going through notice-and-comment rulemaking – is an “extraordinary power” that is to be “delicately exercised” in limited situations.  In issuing the ETS, however, OSHA acted with a “one-size-fits-all sledgehammer,” rather than a “delicately handled scalpel,” and failed to account for differences in workplaces and workers that bear on workers’ susceptibility to the grave danger that the ETS purports to address.

Second, to be lawfully enacted, an emergency temporary standard must: (1) address “substances or agents determined to be toxic or physically harmful” or “new hazards” in the workplace; (2) show that workers are exposed to such “substances,” “agents,” or “new hazards” in the workplace; (3) show that said exposure places workers in “grave danger”; and (4) be “necessary” to protect workers from such grave danger.  The Fifth Circuit concluded that the ETS did not satisfy these requirements.

Next, the Fifth Circuit found that OSHA had failed to show that the ETS was necessary to protect workers from a grave danger.  The court observed that the ETS is the “rare government pronouncement” that is both overinclusive – it applies to employers and employees in all industries and workplaces without accounting for the differences in risks faced by employees in different settings – and underinclusive – it purports to protect workers of companies with 100 or more employees, but not workers of companies with less than 100 employees.

Finally, the Fifth Circuit concluded that the ETS raises “serious constitutional concerns”.  The court stated that the ETS likely exceeds the federal government’s authority under the Commerce Clause because it regulates “noneconomic inactivity” – a person’s choice to remain unvaccinated or forgo regular testing – that falls squarely within the states’ police power.  In addition, the Court cautioned that “concerns over separation of powers principles cast doubt over the [ETS’s] assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.”

In the wake of the Fifth Circuit’s opinion, OSHA published the following statement on its website:

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

What Next?

Now that the cases have been consolidated by the JPML, OSHA is likely to request that the Sixth Circuit lift the Fifth Circuit’s stay. The make-up of the Sixth Circuit Court of Appeals leans conservative, but the matter will be decided by a panel of three judges that is yet to be determined. While the fate of the ETS remains uncertain, it currently appears that OSHA will have an uphill fight at both the Sixth Circuit and, eventually, the Supreme Court.

Since planning for compliance with the ETS is burdensome – and the requirements may never actually become effective – it would be reasonable for employers to pause any plans intended solely to comply with the ETS until the Sixth Circuit rules on whether the stay will continue.  To be sure, the December 6, 2021, deadline to implement the requirements of the ETS (other than weekly COVID-19 testing for unvaccinated employees) is quickly approaching. However, we expect that employers should have clarity on whether the stay will remain in place before Thanksgiving. If the stay is lifted, employers would still have time before December 6, 2021, to take steps to implement the ETS, including preparing their policies and employee communications and creating or updating records indicating the vaccination status of their employees.

It should be noted that federal government contractors covered under Executive Order 14042 and related guidance issued by the Safer Federal Workforce Task Force, which we summarized in a previous post, and healthcare facilities covered under the CMS Rule should continue to plan for compliance with those separate requirements, at least for now. While there are also legal challenges to these separate vaccine mandates pending in the courts, many of the legal arguments differ based upon the underlying authority relied upon by the government when issuing the specific requirement. It is certainly possible that the ETS could be overturned, while EO 14042 and/or the CMS Rule could be upheld.

Meanwhile, COVID-19 new case rates are rising in Pennsylvania and across the northeast and upper mid-west. Employers should continue to consider reasonable measures to reduce the spread of COVID-19 in the workplace. There is no one-size-fits-all approach. Employer requirements on vaccination, testing, masking, and other mitigation measures vary widely. Pending further developments relating to the judicial review of the ETS, most employers continue to have flexibility to do what is deemed best for their business and their employees.

We will continue to keep you posted on developments with the ETS.  As always, please reach out to the McNees Labor and Employment Group with questions about the ETS or other vaccine requirements.

On November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) issued its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) imposing requirements pertaining to vaccinations, testing and face coverings on private employers throughout the country.

Which businesses does the ETS apply to?  The ETS applies to employers with 100 or more employees, including full-time, part-time, active seasonal and teleworking employees.  Independent contractors and temporary employees provided through a staffing agency are not counted by the host employer for purposes of the 100-employee threshold.  Employers that are covered by the ETS remain covered for as long as the ETS remains in effect, regardless of whether the employer’s headcount falls under 100 employees during that period.  A single corporate entity with multiple offices or locations must include every employee in every facility in their count.  On the other hand, separate legal entities that are part of the same family of companies may be counted separately unless their operations are sufficiently intertwined for OSHA to deem them a single employer.

What does the ETS require?  All employers subject to the ETS must either require employees to become fully vaccinated for COVID-19, subject to certain exceptions outlined below, or adopt a policy that requires any unvaccinated employees to submit to weekly COVID-19 testing and wear a face covering when working indoors.  Employers may also choose to require vaccinations for certain groups of employees (i.e. those in customer-facing positions) while granting the testing option to other groups.

Employers that permit unvaccinated employees to test on a weekly basis are not required to pay for the tests unless required to do so under state or local law.  Over-the-counter antigen tests are permitted for purposes of compliance so long as their administration is observed by either an authorized telehealth proctor or the employer.

Additionally, employers must determine the vaccination status of every employee and maintain a vaccination record (i.e. copy of a vaccine card) for each employee who is vaccinated.  Employers who have ascertained vaccination status prior to the effective date of the standard are permitted to rely upon the process previously used and are not required to have employees who had previously shown proof of vaccination to do so again, or to submit a copy for the employer’s records.

Employers must provide time off for employees to get vaccinated. This will include up to four paid hours for each dose of the vaccine, as well as reasonable paid sick time to recover from any side effects.

When do these requirements go into effect?  Numerous lawsuits have been filed in federal Circuit Courts across the country.  On November 6, 2021, the 5th Circuit Court of Appeals stayed the implementation of the ETS, citing “grave statutory and constitutional issues.” Since multiple lawsuits have been filed in various circuit courts, these challenges will be consolidated to a single circuit court through a lottery process. The circuit court chosen to hear the consolidated cases will ultimately decide whether the ETS is a valid exercise of OSHA’s authority.

Assuming the ETS goes into effect as planned, covered employers must implement all of the ETS requirements other than weekly COVID-19 testing for unvaccinated employees by Monday, December 6, 2021. Weekly testing of unvaccinated employees must begin on Tuesday, January 4, 2022.

Are there any exemptions?  The ETS does not apply to: 1) employees that do not report to a workplace where others are present; 2) employees while they are working from home; and 3) employees that work exclusively outdoors and do not regularly occupy vehicles with co-workers or enter indoor spaces in connection with work (e.g. administrative offices or multi-stall restrooms) on more than an infrequent basis for brief periods.  Also, unvaccinated employees who have tested positive for COVID-19 are not required to participate in weekly COVID-19 testing for 90 days following the positive test.

In addition, the ETS does not apply federal government contractor and subcontractor workplaces that are covered under Executive Order 14042, healthcare providers subject to the OSHA’s existing Healthcare ETS (29 C.F.R. 1910.502), or employers that are generally outside of OSHA’s jurisdiction (i.e., state and local governments).

Covered employers may also need to provide reasonable accommodation to employees who cannot be vaccinated due to sincerely held religious beliefs a disability or other medical necessities, but would still need to require such unvaccinated employees to undergo weekly testing unless a separate accommodation would exempt them from that requirement as well.

What if an employee tests positive for COVID-19?  Employers must require employees that receive a positive COVID-19 test result or diagnosis to report the results to the employer promptly. Employers must remove any employee with a positive COVID-19 test result or diagnosis from the workplace immediately, regardless of vaccination status and follow stated protocols before permitting them to return to work.

Reporting and Recordkeeping Requirements   The ETS expands existing reporting and recordkeeping requirements relating to COVID-19 fatalities and hospitalizations.  Employers are required to report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them. If an employee is hospitalized after a work-related COVID-19 infection, the employer must notify OSHA within 24 hours of learning of the hospitalization. Previously, only fatalities that occurred within 30 days of a workplace exposure and hospitalizations which occurred within 24 hours of a workplace exposure needed to be reported. Employers must also make all employee COVID-19 vaccination documentation and test results available to OSHA for inspection upon request, and must disclose to employees or their representative, upon request, the number of vaccinated employees at a workplace along with the total number of employees at that workplace.

Other Requirements  In addition to the above, employers must provide the following information to employees: 1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; 2) the CDC document, “Key Things to Know About COVID-19 Vaccines”; 3) information about protections against retaliation and discrimination; and 4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

To Learn More  The McNees Labor & Employment Practice Group will present two webinars on the new OSHA ETS on November 9 from 3:00 – 4:00 p.m. and November 12 from 3:00 – 4:00 p.m.  You may also contact any member of the Practice Group with any questions you may have.

As we shared in past blog posts, the Pennsylvania Medical Marijuana Act (“MMA”) contains an anti-discrimination provision, that prohibits employers from discriminating against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”  Earlier this year, we also shared that the Superior Court confirmed that this provision created a cause of action, whereby an employee can sue an employer for discrimination in violation of the MMA.  However, a big question remained – what would an employee have to prove to demonstrate such a violation?  On October 19th, a Federal Judge answered that question.  An employee must demonstrate that but for his status as a certified medical marijuana cardholder he would not have suffered an adverse employment action.  Reynolds v. Willert Mfg. Co., Inc., 2021 U.S. Dist. LEXIS 200800 (E.D. Pa. October 19, 2021).

In Reynolds, the employee received a conditional job offer to work for Willert Manufacturing as a Maintenance Tech.  One of the conditions of the offer was successful competition of a drug test.  At no point during his interview or upon learning of the drug testing requirement, did the employee notify the employer of his status as a certified medical marijuana cardholder. While the employee claimed to have notified various testing center employees about his status, there was no record it was conveyed to the employer. The employer was notified of a failed drug test and terminated the employee in accordance with its policy. After he received the termination letter, the employee told the employer he was certified to use medical marijuana.  In essence, the employer said “too bad” and maintained the termination.  Employee filed suit, arguing that his termination violated the anti-discrimination provision in the MMA.

In granting summary judgment for the employer and dismissing the suit, the Court noted that the MMA prohibits only discrimination that is based exclusively on the individual’s status as a certified cardholder. Accordingly, to prevail on a cause of action under the MMA, the employee must demonstrate (1) they were discriminated against on the basis of their status as a cardholder and (2) that, but-for their status as a cardholder, they would not have suffered an adverse employment action.  Because the employee in Reynolds could not satisfy the but-for test, the Court dismissed the suit.

In holding that a but-for test applies, the Court noted the different language utilized by the Pennsylvania legislature in the Pennsylvania Human Relations Act (“PHRA”) compared to the MMA. The PHRA prohibits discrimination because of certain protected characteristics. Conversely, the MMA prohibits discrimination solely on the basis of cardholder status. This critical distinction renders the typical motivating factor analysis inapplicable to a claim under the MMA, as the discrimination must be based exclusively upon the cardholder status.  The Court noted that it is not enough for an employee’s certification status to be a factor – it has to be the factor.  In Reynolds, the employee could not satisfy his burden, because the employer was unaware of his certification status when it made the decision to terminate.  The Court held that when an employer is unaware of an employee’s cardholder status, it cannot possibly base a termination decision upon the employee’s status as a medical marijuana cardholder.

As the law around medical marijuana and the workplace continues to evolve, employers are encouraged to proceed with caution and to consult legal counsel when navigating employment discussions that impact applicants or employees who are certified to use medical marijuana.  Should you have questions in this regarding, please contact Denise Elliott, Esq. or another member of the McNees Labor and Employment Group.

“Vaccinating the Unvaccinated” is central to the Biden Administration’s “Path Out of the Pandemic.”  Federal agency workers and military personnel are required to be vaccinated; health care facilities that participate in Medicare or Medicaid must require vaccination for health care workers; certain federal government contractors must ensure that covered employees are vaccinated (see our prior blog post on the Safer Federal Workforce Task Force Guidance under EO 14042); and OSHA has been directed to issue an Emergency Temporary Standard (“ETS”)  that will require all employers with more than 100 employees to require vaccination or weekly COVID-19 testing for all employees.  The ETS is expected to be issued soon without formal notice and comment rulemaking and will be effective for only six months.

Many large private employers and healthcare systems are already moving forward with mandatory vaccination programs ahead of the ETS and have set deadlines for employees to be fully vaccinated.  Although there have been some legal challenges to private employer vaccine mandates, they have held up to judicial review, provided that the employer establishes a process for considering requests for accommodation due to a disability or sincerely-held religious belief.

The ETS is expected to be issued in the coming days or weeks. Yet, many of the important details remain unknown. Employers are left with many unanswered questions for the time-being, such as:  How will the 100-employee coverage threshold be calculated?  How long will employers have to comply?  What proof of vaccination will be required?  Who is required to pay for weekly testing of unvaccinated workers?  How do employers confirm weekly negative test results for unvaccinated workers?

These and other questions will remain unanswered until the ETS is issued.  In the meantime, we can look to the Safer Federal Workforce Task Force Guidance issued under EO 14042 (Guidance for Federal Contractors and Subcontractors (saferfederalworkforce.gov) for insight.  Although EO 14042 only applies to certain federal government contractors, the Task Force guidance may preview OSHA’s approach to some of the key issues in the ETS.

  1. The ETS will likely go into effect immediately but may give employers a window of time to comply after the new standard is published. For example, under EO 14042 covered federal contractors have until December 8, 2021, to ensure that covered employees are fully vaccinated.
  2. The ETS is certain to include exceptions “as required by law,” which appears to mean that an exception could be provided only if required by the ADA or Title VII, such as for a medical or religious reasons. Since the ETS will allow for a weekly testing option for unvaccinated workers, the circumstances in which an exception from testing will be required as an accommodation appear to be limited.
  3. As to what type of proof of vaccination will be acceptable, the Task Force Guidance requires that covered federal contractors require that their employees “show or provide” proof of vaccination, such as a vaccine card or immunization record. If OHSA takes the same approach, employers who previously reviewed vaccine cards and made records of which employees were vaccinated should be permitted to rely upon those records, even if copies of the vaccine cards were not retained. However, an attestation of vaccination by the covered employee will not be an acceptable substitute if the Federal Task Force Guidance is any indication of the approach to be taken by OSHA.
  4. Based upon the Task Force Guidance, the ETS is unlikely to include an exception from the vaccination or weekly testing requirement for employees who recently had a confirmed case of COVID-19.
  5. With respect to other mitigation measures, the ETS could also require that employers follow the CDC guidelines for masking for unvaccinated workers and vaccinated workers in areas of substantial or high community transmission. The CDC thresholds for high or substantial community transmission are conservative – currently 90% of US counties are classified as “high” community spread by the CDC and another 6% are classified as “substantial.”  It remains to be seen whether OSHA will go beyond the vaccine or testing requirements and issue mask requirements, as the Task Force did for covered federal contractors under EO 14042.

There will certainly be legal challenges to OSHA’s authority to issue the ETS. The legal challenges will likely focus upon whether the specific approach taken in the ETS is necessary and effective to reduce the dangers of COVID-19.  Unless a federal appeals court promptly issues an injunction, the outcome of the legal challenges may not be resolved until after the six-month effective period of the ETS has elapsed.

Employers with more than 100 employees can begin to prepare for the ETS by continuing to encourage vaccination of on-site workers and by having employees “show or provide” proof of vaccination. Many employers are communicating with employees about the forthcoming ETS and urging unvaccinated employees to get vaccinated to protect themselves and their co-workers.  Some employers have gone a step further and have issued a mandatory vaccination policy.   Either way, employers should develop processes and guidelines for handling accommodation requests and obtaining the information necessary to determine whether an accommodation is necessary.

The McNees Labor & Employment Group will present a webinar on the OSHA ETS promptly after it is issued. In the meantime, please reach out to the McNees Labor and Employment Group with questions about Executive Order 14042, the Federal Task Force Guidance, or the OSHA ETS.

A recently published FAQ prepared by the Departments of Labor, Health and Human Services and Treasury answers frequently asked questions regarding vaccine premium differentials and HIPAA nondiscrimination rules, as well as the cost shares for vaccine boosters.

Vaccine Premium Differentials

ERISA and other regulations prohibit plans “from discriminating against participants, beneficiaries, and enrollees in eligibility, premiums, or contributions based on a health factor.”  Health plans are allowed an exception to this prohibition and may provide discounts, subject to limitations, to participants who adhere to the requirements of wellness programs.  The maximum reward (or penalty) under a wellness program that is part of a group health plan is 30 percent of the cost of coverage (or 50 percent for wellness programs designed to prevent or reduce tobacco use).

The FAQ outlines that health plans may offer participants a premium discount for receiving, or surcharge for not receiving, a COVID-19 vaccination, if the discount complies with the five criteria of wellness program regulations.  Those five criteria are:

  1. The wellness program must give the opportunity to qualify for the reward at least once per year.
  2. The reward, together with the reward for other health-contingent wellness programs, must not exceed 30 percent, or 50 percent for wellness programs designed to prevent or reduce tobacco use, of the total cost of employee-only coverage under the plan.
  3. The program must be reasonably designed to promote health or prevent disease.
  4. The full reward must be available to all similarly situated individuals, which includes allowing a reasonable alternative standard, or waiver of the otherwise applicable standard, for obtaining the reward for any individual for whom it is unreasonably difficult due to a medical condition or medically inadvisable to satisfy the otherwise applicable standard, for the relevant period.
  5. The plan must disclose in all plan materials describing the terms of the program, the availability of a reasonable alternative standard to qualify for the reward (and, if applicable, the possibility of a waiver), including contact information for obtaining a reasonable alternative standard and a statement that recommendations of an individual’s personal physician will be accommodated.

The FAQ also clarifies that health plans may not condition eligibility under a health plan on whether an individual obtains a COVID-19 vaccination.  In addition, the FAQ clarifies that wellness incentive reductions are disregarded in determining affordability under the ACA, but wellness incentive increases are not, which means that employers should ensure that the premium differential does not make their coverage unaffordable under the ACA.

No Cost Sharing for Vaccines and Additional Doses

The CARES Act requires health plans to cover, without cost-sharing requirements, any qualifying coronavirus preventative service.  “Qualifying coronavirus preventative service” means an “item, service, or immunization that is intended to prevent or mitigate coronavirus disease 2019” and includes items with an “A” or “B” rating in the current recommendation of the United States Preventive Services Task Force or an immunization recommended by the Advisory Committee on Immunization Practices of the CDC.

The FAQ clarifies that health plans must immediately cover vaccines and any additional doses, without cost sharing, once a vaccine becomes authorized, dating back to December 12, 2020.

The entire FAQ can be found here.

As always, please reach out to any member of the McNees Labor & Employment Group with any questions.

The General Counsel of the National Labor Relations Board (NLRB) issued a Guidance Memorandum last week establishing her position that certain players at academic institutions are employees as defined by National Labor Relations Act (NLRA).  If collegiate athletes are protected as “employees” under the NLRA, then these athletes would have rights to organize and join labor unions, the schools would be required to bargain with athletes’ unions, and the athletes would be protected from retaliation when they engage in concerted activities to improve the terms and conditions of employment.

The Memorandum has no binding legal effect, but it lays out the General Counsel’s view that certain players at academic institutions are employees as defined by the statutory language of the NLRA and by policies the NLRB has adopted over time.  The NLRA defines employee broadly, subject only to a few, specific exceptions, none of which include university employees, football players, or students.  In addition, the Memorandum concludes that principles of agency law also support the proposition that certain players are employees if they 1) perform services for the school or the NCAA, 2) they are subject to the school’s or NCAA’s control (in the form of minimum GPA requirements, scholarship eligibility, etc.), and 3) they are compensated for their services by their receipt of scholarships for tuition, room, board, books, and stipends for additional expenses like travel and childcare.

In short, according to the General Counsel, scholarship athletes clearly come within the NLRA’s broad statutory definition of employee and meet the common-law test.  Therefore, the Memo states, these players should be protected when they act in concert regarding the terms and conditions of their employment.

In addition to these protections, the Memo notes that misclassifying these players as mere “student-athletes” and leading them to believe that they are not entitled to NLRA protections, has a chilling effect on the exercise of rights under the NLRA.

It is unclear what impact the General Counsel’s view will ultimately have on the legal relationship between scholarship athletes and the institutions for whom they play, but this is an area that is sure to get more attention.  Institutions should be cautious when addressing potential concerted activities by scholarship athletes or other players who meet the General Counsel’s definition of employee.  Stay tuned as we continue to monitor these developments.  As always, please reach out to any member of the McNees Labor & Employment Group with any questions.

On Friday, September 24, 2021, the Safer Federal Workforce Task Force issued new guidance on COVID-19 vaccination requirements and other workplace safety protocols for covered federal government contractors, as required under Executive Order 14042. Beginning on October 15, 2021, all agencies will be required to add a clause to all covered Federal procurement solicitations and contracts specifying that the contractor or subcontractor will comply with the vaccine requirement and COVID-19 workplace safety protocols. This requirement will not apply retroactively to existing contracts, but businesses should be aware that any future modifications to “covered contracts” after October 15, 2021, must contain the provision requiring compliance.

What is a “covered contract?”

The executive order defined covered contracts to include any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option to an existing contract or contract-like instrument, if:

  • it is for services, construction, or a leasehold interest in real property;
  • it is for services covered by the Service Contract Act, 41 U.S.C. 6701, et seq.;
  • it is for concessions, including any concessions contract excluded by the Department of Labor regulations at 29 CFR 4.133(b); or
  • it is 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.

The Vaccination Requirement

Pursuant to the new guidance, covered contractors must ensure that all covered employees are fully vaccinated no later than December 8, 2021, unless the employee is legally entitled to an accommodation.  For newly awarded covered contracts or contracts with exercised options, renewals or extensions after December 8, 2021, all covered contractor employees must be fully vaccinated by the first day of the period of performance when the clause has been incorporated into the covered contract. It is the prime contractor’s responsibility to ensure that the required clause is incorporated into any covered first-tier subcontracts entered into or modified after October 15, 2021. Subcontractors are then responsible for ensuring that the required clause is incorporated and flows down to the next lower-tier subcontractor.

Covered employees are those “working on or in connection with a covered contract or working at a covered contractor workplace.”  Accordingly, all employees who work at a location where any employee working on or in connection with a covered contract is likely to be present during the performance of the contract are subject to the vaccine mandate.  According to the Guidance: “Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.” This includes covered employees who are working remotely from their residence.  The guidance also clarifies that even covered employees with recent confirmed cases of COVID-19 must be vaccinated.

In order to ensure that its employees are fully vaccinated, covered contractors must require their covered employees to show or provide documentation to prove vaccination status. A copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, or a copy of medical records documenting the vaccination with the name, date of administration, and the name of the provider are all acceptable documentation of proof of vaccination status. Also, it is acceptable for an employer to view or receive the documentation in digital form, including, for example, a digital photograph, scanned image, or PDF. Employers that previously reviewed their employees’ vaccination cards and made a record of the provision of documentation – even where copies were not retained – are likely in compliance with this requirement. However, an attestation of vaccination by the covered employee is not an acceptable substitute.

Other Required COVID-19 Safety Protocols for Covered Contractor Workplaces

In addition to ensuring covered employees are fully vaccinated, covered contractors must continue to follow CDC guidance for masking and social distancing for both covered employees and site visitors in covered contractor workplaces. All individuals, regardless of vaccination status, must wear a mask in indoor settings in areas of high or substantial community transmission. Fully vaccinated people need not wear a mask in areas of low or moderate community transmission.  Community transmission levels are determined based upon the CDC information available at https://covid.cdc.gov/covid-data-tracker/#county-view.  To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times. However, fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area.

Covered contractors must require covered employees and site visitors who are required to wear a mask to:

  • Wear appropriate masks consistently and correctly (over mouth and nose).
  • Wear appropriate masks in common areas and shared workspaces (including open floorplan office space, cubicle embankments, and conference rooms).
  • For individuals who are not fully vaccinated, wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance.

For covered contractors with multiple buildings, sites, or facilities, the requirements will apply to all employees and sites unless the covered contractor can affirmatively determine that there will be no interactions between covered contractor employees and non-covered contractor employees during the period of performance of a covered contract. This includes interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

Exceptions to mask wearing and/or physical distancing requirements may be provided by the covered contractors consistent with CDC guidelines. For example, exceptions may be provided when an employee is alone in an office with floor to ceiling walls and a closed door, for a limited time when eating or drinking and maintaining appropriate physical distancing, when participating in an activity where a mask may get wet, or where wearing a mask would create a risk to workplace health or safety. The exception must be approved in writing by a duly authorized representative of the covered contractor.

Covered contractors must also designate one or more individuals to oversee the implementation and compliance with the Task Force Guidance. The designated individual(s) must ensure that information on required COVID-19 workplace safety protocols is communicated to covered contractor employees and all other individuals who may be present on a covered contractor workplace site. Additionally, they are charged with ensuring that the covered contractor employees and visitors comply with the requirements related to showing or provision of vaccination documentation.

Further clarification and guidance on coverage and contract provisions is expected from the Federal Acquisition Regulatory Council by October 8, 2021. While Executive Order 14042 only applies to employers with a covered federal government contract, OSHA is currently working on an Emergency Temporary Standard that will apply to all private employers with 100 or more employees and will require employees of such employers to be vaccinated or tested for COVID-19 each week.  If you have any questions about the Executive Order, the new guidance, or the forthcoming OSHA ETS please contact any member of our Labor and Employment Practice Group.

The Biden Administration announced earlier this summer that Long COVID may qualify as a disability under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and several other federal statutes offering protection for disabled individuals. The Centers for Disease Control and Prevention has defined “Long COVID” as new or ongoing symptoms of COVID-19 that can last for several weeks or months after an individual was infected with the virus.  Long COVID symptoms can include fatigue, “brain fog,” heart palpitations, joint or muscle pain, dizziness, and depression or anxiety.

The Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) subsequently issued guidance explaining how Long COVID may qualify as a disability under the ADA.  A physical or mental impairment is a “disability” if it substantially limits one or more major life activities, such as eating, breathing, working, etc. The guidance reminds us that the phrase “substantially limits” must be construed broadly and the limitation does not need to be permanent or severe in nature.  The guidance also provides several examples of how Long COVID can substantially limit a major life activity, including the following:

  • A person who has lung damage that causes shortness of breath, fatigue and related effects is substantially limited in respiratory function, among other major life activities.
  • A person who has symptoms of intestinal pain, vomiting and nausea that have lingered for months is substantially limited in gastrointestinal function.
  • A person who experiences memory lapses and brain fog is substantially limited in brain function, concentrating, and thinking.

The guidance goes on to state that Long COVID may not always be a disability and an individual medical assessment will be required to determine whether it creates a substantial limitation of a major life activity.  The EEOC recently issued a statement indicating that it agreed with HHS and DOJ’s guidance relating to Long COVID and that it would be updating its technical assistance on this issue in the next few weeks.

In the meantime, employers should be aware that if a COVID “long hauler” is found to have a disability, they may be entitled to a reasonable accommodation. Examples of a reasonable accommodation could include a leave of absence, remote work, job restructuring or part-time work. Employers do not have to alter or eliminate the essential functions of a job or provide an accommodation that causes an undue hardship to the business.

In addition to the ADA, Long COVID also may be covered by the Family and Medical Leave Act (“FMLA”) since it would be considered a serious health condition.  Employers need to understand the protections provided to employees by both the ADA and the FMLA and train managers and supervisors on the applicability of these laws. Employers also should review their existing leave and accommodation policies and procedures to ensure they can manage Long COVID in the workplace.

Should you have questions regarding this guidance, the ADA, or any other federal disability laws, please reach out to a member of the McNees Labor and Employment Group.

The 100-percent premium subsidy for eligible COBRA health care enrollees, enacted earlier this year as part of the American Rescue Plan Act (ARPA), period is ending September 30, 2021.

Group health plans need to send an expiration notice to eligible individuals 15 to 45 days before their premium assistance expires. The last day the notices must be mailed is September 15, 2021.

Plan sponsors should check with their COBRA administrators to ensure this final notice is delivered in a timely manner.

For more information on these changes and other employee benefit law changes, contact a member of our Labor and Employment or Employee Benefits Group.