On February 5, 2020, we published our first blog post warning firms about the possibility of disruptions caused by COVID-19, which was not a pandemic yet. We cautioned firms to contact clients to discuss services and schedules, restructure contracts to address the probability of delays, and protect their employees from exposures. Since that first post two years ago, we have addressed the pandemic in 31 additional posts. Here is our latest as we continue to face the challenges of COVID-19.
Federal Government Efforts
The best way to protect employees and minimize the likelihood of variants is through vaccinations, but with the US comprising 56 separate state and territorial jurisdictions, there is lack of consistency and breadth in efforts to protect public health. There is also a limit to a national response.
At the start of 2022, there were three federal government-issued COVID-19 vaccine mandates while formulating a national response. The Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) vaccine or test weekly mandate would have applied to large employers with 100 or more employees. The Centers for Medicare & Medicaid Services (CMS) vaccine mandate would have required full vaccinations for the staff of CMS-funded healthcare providers and suppliers with no testing option. In addition, the federal contractor and subcontractor mandate required certain contractors and subcontractors that do business with the federal government to implement COVID-19 workplace safety measures, including a vaccine mandate with no testing option and masking, social distancing, and the “designation of an individual to coordinate COVID-19 safety protocols at covered workplaces.” All three of the federal mandates stated that an employee might be entitled to an accommodation for a disability, medical condition, or sincerely held religious belief under the ADA and Title VII.
Centers for Medicare & Medicaid Services Vaccine Mandate
As of this blog post, only the CMS mandate affecting healthcare providers is currently enforceable. The U.S. Supreme Court allowed the CMS vaccine mandate to become effective because the court reasoned that CMS has broad powers for requirements for providers and suppliers participating in CMS programs that CMS finds necessary in the interest of the health and safety of individuals who are furnished services under the programs. The court’s ruling was heavily reliant on CMS’s specific statutory authority to regulate the safe and effective provision of healthcare.
OSHA Emergency Temporary Standard
On January 13, 2022, in a 6-3 majority decision, the Supreme Court issued an opinion putting the OSHA ETS on hold indefinitely pending further review by the United States Court of Appeals for the Sixth Circuit, which had reinstated the vaccinate-or-test mandate. Although the Supreme Court acknowledged that OSHA has authority under the Occupational and Safety Hazard Act to set safety standards for the workplace, the court concluded that COVID-19 is a risk that occurs in many workplaces, but is not an occupational hazard in most as it spreads in several other places where people gather that are outside OSHA’s jurisdiction. The court stated that allowing the OSHA ETS to become effective would amount to permitting OSHA to regulate the hazards of daily life and significantly expand OSHA’s regulatory authority without clear congressional authorization.
The court went on to reason that OSHA did not narrowly tailor ETS to address specific workplaces or industries where COVID-19 poses a special danger. The majority opinion justices stated that a narrow focus would be plainly permissible because a specific occupational health or safety standard would be within OSHA’s jurisdiction, but the court ruled that a general public health measure is beyond OSHA’s jurisdiction.
Although the Sixth Circuit Court of Appeals would have been set to review the legality of the ETS on the merits based on a more comprehensive review, and could have technically reinstated the mandate, OSHA announced it had decided to withdraw the mandate on January 25, 2022. However, the Biden Administration noted that despite the withdrawal of the ETS as an enforceable standard, it still serves as a proposed rule that OSHA could revise as it moves though the standard rulemaking process. The administration could issue narrower regulations for specific jobs or industries where the virus poses a special danger because of the particular features of the job or workplace.
Federal Contractor Mandate
In September 2021, President Biden issued Executive Order 14042, which directed federal agencies to require in contracts with certain contractors and subcontractors doing business with federal agencies to implement vaccine mandates with no testing alternative and other protocols, including masking, social distancing, and designation of an individual to coordinate COVID-19 safety protocols at covered workplaces. Many federal contractors and subcontractors immediately began implementing the required protocols to retain federal contracts.
Then in December, several federal district courts issued preliminary injunctions blocking the federal contractor mandate for reasons somewhat different from the arguments raised against the OSHA ETS. The reasons included that the federal vaccine mandate violates state sovereignty by prohibiting states from exercising their police power to establish laws regarding workplace vaccination policies, and that the vaccination mandate is inconsistent with the federal procurement laws and the Administrative Procedure Act.
The result of the injunctions issued by federal courts in Kentucky, Georgia, Louisiana, Missouri, Florida, and Texas is prohibition of the federal contractor mandate nationwide. The federal government has appealed these decisions, but it appears that decision of these appeals will happen in Spring 2022. For now, the government cannot enforce the federal contractor mandate, but private parties can contract between themselves and agree to comply voluntarily with the provisions of the proposed rule. In such cases, that agreement would be enforceable as long as the relevant state or local jurisdiction does not prohibit mandates.
Reasonable Actions for Design Firms
Firms are grappling with how to keep workplaces safe, retain employees, and comply with legal responsibilities. Many employers are wondering what will come next and how they can stay ahead while keeping workers reasonably happy. Some design and construction firms were relieved to hear that the courts stayed and enjoined the OSHA ETS and federal contractor mandates, respectively, since they present organizational challenges and increased costs that few project owners would allow in their contracts.
Prudent design firms should not abandon all efforts to mitigate the spread of COVID-19 in their offices. Firms should continue to monitor developments and updates to guidance issued by OSHA and the CDC, including through this blog. That way firms can keep plans to mitigate and prevent the spread of COVID-19 current. If a firm does not already have such a written plan in place, preparing one according to OHSA’s Protecting Workers Guidance should help the firm respond to COVID-19 despite the status of the vaccine mandates.
Firms that have already prepared and implemented vaccination or testing policies may want to proceed according to their plans to require vaccinations with necessary exemptions or testing and simply allow employees more time to comply. Encouraging voluntary compliance through education and, in some cases, reasonable incentives can make vaccine mandates effective in protecting firm productivity.
If firms elect to hold off either on implementing a vaccination policy or withdrawing a policy already implemented, it makes sense to continue to require employees to stay home when they are sick, track exposures and transmissions of the virus that occur in the office, and require masking and social distancing for employees at indoor gatherings. Clear guidelines are essential for when and to whom your workers should report an illness or exposure and how long they are required to quarantine or stay home from work. The CDC recently updated its guidance on these questions and following that guidance will help firms meet their obligations under the OSHA General Duty Clause to keep the workplace free from recognized hazards that cause or are likely to cause death or serious physical harm.
Because of the variation among states, it also is critical to review state and local laws where firms do business or have employees to determine whether there are state or local mandates that require employee vaccination, weekly testing, or masking while indoors. Firms can adopt COVID-19 policies they deem prudent provided their policies comply with state and local restrictions. Firms must be aware if the states in which they operate prohibit vaccine mandates or require exemptions beyond exemptions for disabilities, medical conditions, and sincerely held religious beliefs.
It is clear that COVID-19 disruptions will not end in the immediate future. Design and construction firms should still be taking proactive steps to protect their workforce and productivity.
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