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08 Dec

December Mid-Month 2021 Federal HR Updates

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OSHA Emergency Temporary Standard (ETS) Vaccine Mandate Latest Update:

The following was provided by the trusted Constangy, Brooks, Smith & Prophete Law Firm, which outlines a best practice recommendation for employers:

What should employers be doing?
The December 6, 2021 deadlines for employers covered by the ETS were as follows:

  • Put together a written company policy on vaccination.
  • Determine which employees are vaccinated and which are not.
  • Obtain proof of vaccination from the vaccinated employees and maintain records and a roster of vaccination status.
  • “Provide support” for vaccination.
  • Require employees to notify the company promptly if they test positive for COVID-19 or are diagnosed with COVID-19.
  • Require employees who are not fully vaccinated to wear proper face coverings when indoors or in a vehicle with another person for work purposes.
  • Provide all employees with information about the vaccine mandate and how the company intends to respond, as well as other information (including legal penalties for providing false information).
  • Make arrangements for reporting to OSHA any work-related COVID-19 fatalities or inpatient hospitalizations within 24 hours.

It is recommended that employers do the following while the stay remains in effect:

  • Determine whether to mandate vaccinations (making exceptions only for employees who qualify for reasonable accommodations of medical conditions or religion) or whether to allow employees to opt out of vaccination for other reasons, provided that they are willing to undergo weekly COVID-19 testing.
  • If you don’t already have one, create a process for dealing with reasonable accommodation requests.
  • If the decision is to mandate vaccination with only the exceptions required by law, then announce that to employees, determine how best to maintain records of vaccination, and begin gathering proof of vaccination. With unvaccinated employees, provide a deadline by which they must be fully vaccinated, and determine whether to place non-compliant employees on indefinite leaves of absence or to terminate their employment. Take all of the other steps required to be in compliance with the December 6 deadline (even though it may not be taking effect until later, if ever)
  • If the decision is to allow employees to opt out of vaccination, announce that decision to employees, determine how best to maintain records of vaccination, and begin gathering proof of vaccination. Depending on the number of unvaccinated employees you anticipate, determine whether you want the weekly COVID-19 testing and recordkeeping to be performed “in house” or by a vendor. If the latter, begin shopping for a vendor who can perform the weekly COVID-19 tests and maintain the test records for you, but do not sign any contracts that are irrevocable. Delay telling unvaccinated employees that they will be subject to weekly testing unless you planned to require that with or without the ETS.
  • In either case, begin drafting a vaccination policy that complies with the ETS requirements.
  • Prepare all other written materials required by the ETS.
  • Prepare for the requirement to report COVID-19-related fatalities and inpatient hospitalizations to OSHA.

As a side note, there has also been a motion to transfer the case back to the Fifth Circuit court of appeals, but no word on the outcome of that just yet (Link).

The first set of ETS requirements is virtually certain not to take effect on Monday. Moreover, if the stay is not lifted by December 20, 2021 (ten business days before January 4, 2022), the weekly testing requirement is unlikely to take effect on that date. But these delays do not necessarily mean that the Sixth Circuit won’t eventually lift the stay, allowing the ETS to take effect. That is why it may be best for employers to prepare.

Centers for Medicare and Medicaid Services (CMS) Vaccine Mandate Update

On November 29, 2021, the federal judge in Missouri issued a preliminary injunction blocking the CMS vaccine mandate that applies to certain recipients of Medicare and Medicaid funds. The injunction only applies to Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

However, on November 30, 2021, another federal judge in Louisiana issued a preliminary injunction against the CMS vaccine mandate applying it to all remaining states. The judge stated the following:

“For the reasons set forth in this Court’s ruling, Plaintiff States’ Motion for Preliminary Injunction is GRANTED. Therefore, the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services, along with their directors, employees, Administrators, and Secretaries are hereby ENJOINED and RESTRAINED from implementing the CMS Mandate set forth in 86 Fed. Reg. 61555-01 (November 5, 2021) as to all healthcare providers, suppliers, owners, employees, and all others covered by said CMS Mandate. This preliminary injunction shall remain in effect pending the final resolution of this case, or until further orders from this Court, the United States Court of Appeals for the Fifth Circuit, or the United States Supreme Court.”

For now, employers should do their best to be in compliance with these mandates until guidance is released.

Vensure Employer Services will continue to provide updates.

Resource Documents: Missouri Document; Louisiana Document

Missouri Court Blocks Vaccine Mandate for Healthcare Workers in 10 States.

Update Applicable to:
Please see our previous communication for a list of employers to whom the CMS mandate applies here.

What happened?
The federal court in Missouri issued an order blocking the implementation of the vaccine mandate for Healthcare workers in 10 states.

What are the details?
On November 29, 2021, Judge Matthew Schelp of the Eastern District of Missouri issued an order blocking the implementation of the Centers for Medicare and Medicaid Services (CMS) vaccine mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

The preliminary injunction by the U.S. District Court for the Eastern District of Missouri marks the first victory for opponents of the mandate, which requires health workers to be vaccinated by January 4, 2022.

The lawsuit is one of four challenges the Centers for Medicare and Medicaid Services face against the rule. More than half of states are now involved in one of the challenges, which all claim the mandate will exacerbate staffing shortages.

For more information, please see the links below:

The Order

Article 1Article 2Article 3

Previous Legal Update for the CMS

What do employers need to do?
The Biden administration is likely to pursue an appeal to the Supreme Court. While that process is underway, facilities subject to the Regulations are urged to confirm with counsel the status of the interim final rule in their jurisdiction(s) and plan accordingly for the rapidly approaching first vaccination deadline.

Federal Contractor Minimum Wage Increases to $15

Update Applicable to:
All employers with federal contractors.

What happened?

On November 22, 2021, the Department of Labor (DOL) issued a final rule to increase the minimum wage for employees who work on federal contracts.

What are the details?

Effective on January 30, 2022, the final rule implements Executive Order 14026 and will apply to all 50 states, the District of Columbia, and specified U.S. territories.

Executive Order 14026 will perform the following:

  • Increases the hourly minimum wage for employees performing work on or in connection with covered federal contracts to $15 per hour beginning on January 30, 2022.
  • Continues to index the federal contract minimum wage in future years to inflation.
  • Eliminates the tipped minimum wage for federal contract employees by 2024.
  • Ensures a $15 minimum wage for employees with disabilities performing work on or in connection with covered contracts.

Federal contractors that fail to pay their employees the increased minimum wage may be required to remedy such failure by paying back wages to employees in the required amount. The Department of Labor may bring a civil lawsuit against the federal contractor to recover such back wages plus any additional damages.

Furthermore, where a federal contractor is found to have disregarded its obligations under the rule, such federal contractor (as well as its responsible officers and any business entity in which the federal contractor or its responsible officers have an interest) may be prohibited from obtaining a new contract for three years.

For more information, please see the links below:

Final Rule

Executive Order 14026

DoL Article

Article 1Article 2

What do employers need to do?
Employers should review the links above and prepare to make the following changes to their payroll system to stay in compliance with the new law.