White House Announces Executive Orders Mandating Covid-19 Vaccines for Federal and Private Workforce

President Biden issued two Executive Orders (EOs) on September 9, 2021, that created mandates related to the ongoing COVID-19 pandemic. Both of the EOs raise many unanswered questions about how the mandates will be implemented. While we do not have answers to these questions presently since details are still forthcoming, PRINTING United Alliance will monitor the situation closely, and when the Emergency Temporary Standard (ETS) is issued, PRINTING United Alliance will produce a Vaccine Testing Plan that will provide processes and procedures to help companies comply with the mandates.

OSHA is directed to issue a new ETS mandating that qualifying companies require employees to be fully vaccinated for COVID-19, and to perform testing for those who cannot or will not agree to vaccination. An ETS is a directive that can be created only if OSHA determines that workers are in grave danger due to certain toxic substances or new hazards. An ETS will go into effect immediately upon publication, which is typically within a day or two of issuance and will remain in effect until it is superseded by a permanent standard or until it automatically expires in six months. The Agency has indicated that an enforcement grace period will be in effect to allow companies time to comply.

The EOs direct the agency to require private employers with 100 or more employees to ensure their workforce is fully vaccinated for COVID-19, or to require employees who are not fully vaccinated to be tested for COVID-19 at least once each week for the employee to be allowed to work. OSHA is not expected to issue the ETS earlier than mid-October, when it will be effective immediately upon publication, which is generally within days of issuance. Once issued, the ETS will likely be challenged in federal courts and those lawsuits may result in delayed implementation. Despite this possibility, companies should be prepared with policies and procedures by the effective date.

While waiting for OSHA to issue an ETS, questions related to the mandates abound. For instance:

1. The questions about how to calculate the 100 employee qualifying factor:
   • Will head count be company-wide or on a location-by-location basis?
   • If a franchise scenario, will OSHA use the headcount for the brand or for will the individually-owned franchises stand alone?
2. How will testing be handled?
   • What will be required to verify the vaccination status of employees?
   • What type of COVID-19 tests may be used to fulfill this mandate? Although they may be less accurate, “rapid” tests that give instant results are the most logical choice. If the laboratory-processed PCR tests are used, laboratories may be inundated test-processing demands which may result in delays during which tested employees will miss work while waiting for the results.
   • Will an adequate supply of the appropriate tests exist?
   • Who will pay for the testing?
   • Who will administer the tests? Tests would likely need to be done on site to curtail cheating. Will employees self-administered in the presence of the employer’s representative, or will tests be administered by the employer’s representative?
     • Whoever administers the test must be trained on how to properly perform the nasal swabbing.
       • Will companies that administer the COVID-19 testing be protected from liability for possible HIPAA violations when managing the testing information, or for sending home an employee who has tested positive for COVID-19 which would be difficult to keep confidential?
       • Individual and corporate liability for test results that are later found to be inaccurate. Incorrect rapid test results could result in delayed medical treatment, potential exposure of coworkers, potential exposure of non-employees, lost wages for those incorrectly testing positive, and other scenarios?
       • What protection is there for any injuries that may be caused by improper test administration?
     • Nasal swabs used for COVID-19 tests may carry bloodborne pathogens, which triggers an OSHA requirement that the employer retain records of the procedure confidentially for the duration of the person’s employment plus an additional 30 years. Companies record retention system should be able to handle this requirement.
     • The employer’s representative would have heightened exposure to COVID-19. Will OSHA create requirements for the protection of testers?
     • The test swabs qualify as a biohazard and medical waste and will need to be disposed of in an appropriate manner. The disposal of biohazardous waste is approximately ten times more expensive to process than normal waste because it must be incinerated or treated by autoclaving (a high-pressure steam treatment).
     • Will employers be responsible to verify when an employee presents a qualified exemption?

1. Employers will be required to provide paid time off to be vaccinated and to recover from any side effects of the vaccination.

1. The ETS can remain in effect for up to six months. After six months, a new and different ETS must be issued, or a Permanent Standard must be put in place.
2. Federal contractors will be the subject of guidance from Safer Federal Workforce Task Force. The White House has stated mandated vaccinations for workplaces with federal contracts such as those for private employers but without the exception for companies with less than 100 employees will be put into effect.
3. The federal contractor mandate will apply to new contracts or contract-like agreements for services, construction, or a leasehold interest in real property for services, procurement, concessions, or federal property & lands.
   • This applies to employees of the contractor who are performing work within the United States; but
   • Does not apply to employees that work outside of the United States.
   • Does not apply to subcontracts solely for the provision of products.
   • Does not apply to contracts with Native American tribes.
4. Federal contractors and subcontractors must include a clause in their contracts that require compliance with the Safer Federal Workforce Task Force guidance that has been approved by the Office of Management and Budget as promoting economy and efficiency in federal contracting.
   • By September 24, 2021, the Task Force must provide contractors and subcontractors definitions of terms and explanations of protocols that will be required under the EO policy.
   • Federal contracts governed by the Federal Acquisition Regulation will be created and revised whenever possible to conform with the new mandates by October 15, 2021.
5. Federal, state, and local laws and regulations that are stricter than the EOs will need to be followed.
6. Will an employee’s refusal to be vaccinated without a qualifying exemption result in a furlough or separation from the company?

Once OSHA issues the ETS, PRINTING United Alliance will have a resource guide about how to comply with the mandate. PRINTING United Alliance subject matter experts will provide complete information about what is being required and how employers can meet responsibilities related to the new vaccination mandate.

On September 29, at 2:00 ET, Adriane Harrison, VP of Human Relations Consulting and Gary Jones, Director of Environmental, Health, and Safety Affairs, PRINTING United Alliance, will have a webinar to discuss the mandates, address questions they raise, what will happen next, and what you can do to prepare. Registration is free for both PRINTING United Alliance members and non-members, so save your spot today! Register here.

To assist companies with further questions in the meantime, contact Adriane Harrison at: aharrison@printing.org, or Gary Jones at: gjones@printing.org; or call 888-385-3588.