First and Foremosts September 2021 Presentation

© 2021 Lerch, Early & Brewer
Presented by:
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First & Foremosts
Legal Update on Vaccine Mandates
Julie A. Reddig and Nicole M. Behrman
Employment Attorneys
Lerch, Early & Brewer, Chtd.
Wednesday, September 22, 2021

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President Biden’s “Path Out of the Pandemic”
“Vaccinating the Unvaccinated” – is the “prong” directed at employers
• All Federal Employees must be vaccinated
• Employees of Federal Contractors must be vaccinated
• Healthcare workers at Medicare and Medicaid Participating Hospitals and
other health care settings must be vaccinated
• Employees of Private Employers with 100+ Employees must be vaccinated

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Federal Employees – Must be Fully Vaccinated by November 22, 2021
• Employees on maximum telework or working remotely are not excused from
this requirement
• Federal Agencies will be required to provide reasonable accommodation for
employees who are not vaccinated because of disability or sincerely held
religious belief
• Federal Employees must provide proof of vaccination through Official
documentation, such as a Copy of Vaccination Record Card or a Copy of medical
records documenting the vaccination, containing:
– Type of vaccine administered
– Dates of administration,
– Name of the healthcare professional or clinic site administering the vaccine
– Employees must certify under penalty of perjury that the documentation they are submitting is true and correct.
• Who can have access to employee vaccination status? -Those who have a need
to know in order to perform their duties or ensure effective implementation of
the safety protocols, which may include supervisors
• See FAQ’s: https://www.saferfederalworkforce.gov/faq/vaccinations/

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• What are the requirements?
– No immediate workplace requirements
– A new “contract clause” created by federal executive agencies must be inserted into contracts and
contract-like instruments that are entered into on or after October 15 that will require contractor or
subcontractor to comply with all guidance for workplace locations issued by the Safer Federal Workforce
Task Force
– Task Force will issue guidance by September 24 with:
• definitions of relevant terms for contractors and subcontractors
• explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and
• any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in
those locations working on or in connection with a Federal Government contract or contract-like instrument
– President Biden has announced the guidance will include a vaccine mandate
• What workplace locations will the Task Force guidance apply to?
– Any workplace locations included in the Task Force in which in which an individual is working on or in
connection with a federal government contract or contract-like instrument
Executive Order on Ensuring Adequate COVID Safety Protocols for
Federal Contractors

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• Who is covered?
– New contracts, new solicitations for contracts, extensions or renewals of existing contracts, and exercise
options of an existing contract, if:
• It is a procurement contract for services, construction, or a leasehold interest in real property;
• It is a contract for services covered by the Service Contract Act, 41 U.S.S. 6701;
• It is a contract for concessions; or
• It is a contract 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
• What about existing contracts and contracts not covered in the above categories?
– Agencies only strongly encouraged to incorporate Task Force safety protocols and vaccine mandate
• What to do in the meantime?
– Prior to being subject to a contractual requirement to be vaccinated, on-site contractor employees need
to certify to their vaccination status and any on-site contractors not fully vaccinated or who decline to
provide information about their vaccination status must be enrolled in an agency testing program or
provide proof of a negative COVID-19 test no later than 3 days prior to entry to a federal building
Executive Order on Ensuring Adequate COVID Safety Protocols for
Federal Contractors, continued

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• Medicare and Medicaid reimbursements are only available to
employers who have a fully vaccinated workforce
• Applies to employees who are providing services to patients,
residents, or clients directly AND those who are not
• Mandate will be issued through a rule promulgated by HHS
Healthcare Workers at Medicare and Medicaid Participating Hospitals
and Other Health Care Settings must be vaccinated

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President Biden directed OSHA to develop an “Emergency Temporary Standard”
that will require Private Employers with 100+ employees to:
• Ensure their workforce is fully vaccinated or tested weekly and show a
negative result before reporting to work; and
• Provide employees with paid time off to get vaccinated and recover from any
adverse effects of the vaccine
• Penalties for non-compliance = OSHA fines of up to $14,000 per violation
(unclear if this will be per: workplace, worker, day, etc.)
• No impact on Employer’s duty to bargain over the effects of the mandate
Private Employers with 100+ employees

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Who is covered?
• We anticipate that the 100 employee count will be a company wide count
When does this go into effect?
• No clear timeline or deadline issued for OSHA to issue the ETS, DOL said “coming
weeks”
• Will become immediately effective in 29 states where OSHA has jurisdiction. In
states where state workplace safety rules control (CA, TN, NC, KY), these agencies
will have to adopt the ETS or just as effective measures within 14 to 30 days
• Likely to have an enforcement delay to allow employers to implement
• After it goes into effect, it will be in place for 6 months and then must be replaced
with a permanent standard that undergoes the formal rule making process

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Unanswered Questions:
• What is proof of vaccination and do employers have to collect it?
• Details on the Testing Option:
– What type of testing is required? PCR vs. antigen
– Who pays for the testing?
– Is time spent getting tested compensable time under the FLSA? See: Nos. 7 & 8 at
https://www.dol.gov/agencies/whd/flsa/pandemic
Is this really going to happen?
• Litigation is certain

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1. Determine which employees currently are vaccinated
– Implement a plan to gather vaccination status from every employee
– Ask only if the employee is vaccinated. No follow up questions at this stage
– Consider asking for proof of vaccination – treat this as a confidential medical record
– Consider employee certification
– Request no disclosure of genetic information, e.g. family history or medical information
– Treat vaccination record as a confidential medical record
Who can know this information?
Recommendations on a Mandatory Vaccination Policy

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2. Decide what type of mandate you want to impose:
• All employees must be vaccinated;
• All employees who work at Company office/premises or have in-person
contact with other employees, customers, vendors must be vaccinated;
• Employees who desire to work at the Company office/premises or have
in-person contact with other employees, customers, vendors must be
vaccinated;
Will there be a testing option in lieu of vaccination?

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3. Consider Compensation Issues:
• Paid time off for getting vaccinated
• Reimbursement of expenses associated with getting vaccinated (parking, public
transportation)
• Can employees get vaccinated during work time?
• Paid time off for post-vaccine illness?
• Is paid time off coming from existing accrued sick/vacation/PTO leave or is it a new
bank of leave? Are there state and local government mandates for leave?
Testing – time spent testing per DOL is compensable even on days off if testing is
necessary to perform the job safely and effectively,
-- who is paying for the test? -- When are employees getting tested?
-- Link to HHS website page on sites offering free COVID-19 tests:
https://www.hhs.gov/coronavirus/community-based-testing-sites/index.html

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4. Determine how accommodation requests will be handled
• Federal law requires reasonable accommodation based on disability and sincerely held
religious belief that does not impose an undue hardship on the employer
• State and local laws may impose other accommodation requirements, such as accommodation
for pregnancy and breastfeeding
• Provide that requests be made in writing but train managers to understand that verbal
requests may trigger the duty to accommodate
• Employer and employee must engage in the interactive process to consider possible
accommodation option(s) and obtaining supporting documentation about the employee’s
medical condition
• EEOC Vaccine Guidance provides several possible accommodations of a mandatory vaccination
policy: requiring use of masks and social distancing for unvaccinated employees; staggering
employee shifts; limiting physical contact with others; improving ventilation systems; allowing
telework where feasible; and reassignment to a vacant position in a different workspace
• Also, regular testing may be an accommodation

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• In July, the White House announced Long COVID-19 may be a protected disability
• U.S. Department of Justice and U.S. Department of Health and Human Services issued guidance stating that Long COVID-19
can be a disability in certain circumstances because long COVID can substantially affect a major life activity
– But, Long COVID will not always be a disability, individualized assessment is necessary to determine whether a
person’s long COVID condition or any of its symptoms substantially limits a major life activity
• EEOC has not issued guidance on Long COVID-19 as a disability
• But, Department of Labor issued guidance on reasonable accommodations for Long Haulers
– “While it’s not certain yet whether COVID-19 or Long COVID will meet the definition of disability, it is possible since
the definition is intended to be broad. And, even if Long COVID is temporary, it might still be a disability under the
ADA, as temporary conditions can be disabilities if the limitations are severe enough”
– Possible accommodations can include providing or modifying equipment or devices, job restructuring, part-time or
modified work schedules, reassignment to a vacant position, adjusting or modifying examinations, training materials,
or policies, providing readers and interpreters, and making the workplace readily accessible to and usable by people
with disabilities
– https://askjan.org/blogs/jan/2021/03/covid-19-long-haulers-and-the-americans-with-disabilities-
act.cfm?utm_source=govdelivery&utm_medium=email&utm_campaign=ODEP_Business_Sense_5-12-21
Long COVID-19

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5. How will Safety practices be adjusted (if at all)
• Maintaining COVID symptom screenings; temperature checks;
quarantines for close contact exposures; and continued masking?
• Vaccine side effects experienced by an employee incurred as a result
of employer’s mandatory vaccination policy are reportable under
OSHA but OSHA is not enforcing this through May 2022 to encourage
vaccination and avoid disincentivizing employers' vaccination efforts
(OSHA FAQs: Vaccine-Related (updated May 2021))

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6. Draft the Policy
• Purpose & Benefits of Vaccination
• Who is covered
• State if mandatory and if there is a testing option
• Explain how to get vaccinations – where, when, reimbursement of costs
• Describe collection of vaccination information
• Explain available accommodations and how to request
• Detail continued COVID safety protocols for vaccinated and unvaccinated
• State consequences of noncompliance
• Confidentiality and GINA disclaimer
• No retaliation

Disclaimer:
This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before
acting on any information contained here.
Unauthorized Recording and Broadcast Notice:
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consent of Lerch, Early & Brewer, Chtd. and individual authors is strictly prohibited.
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Thank you!

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About the Presenter
Employment attorney Julie Reddig helps employers build and maintain
productive workplaces by navigating the many federal, state, and local
laws protecting employees in the workforce. She counsels management
on avoiding and defending against employment claims before
administrative agencies and local, state, and federal courts in Maryland
and the District of Columbia.
Julie A. Reddig
T 301-961-6099
F 301-347-1788
jareddig@lerchearly.com
Employment & Labor Attorney
Lerch, Early & Brewer

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About the Presenter
Nicole Behrman has represented clients before the DC Superior Court,
District Court for the District of Columbia, the EEOC, DC Office of Human
Rights, and DC Office of Administrative Hearings. She has litigated cases
involving claims of discrimination, harassment, retaliation, FMLA
interference and retaliation, wage and hour violations, breach of contract,
and wrongful termination in violation of public policy.
Nicole M. Behrman
T 301-657-0744
F 301-347-1763
nmbehrman@lerchearly.com
Employment & Labor Attorney
Lerch, Early & Brewer

First and Foremosts September 2021 Presentation

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