While employers await OSHA’s Covid-19 vaccination and testing requirements, the Biden administration is issuing detailed guidance to federal agencies and contractors on how they should comply with its already-extant vaccination mandates for federal contractors.
The guidance from the Safer Federal Workforce Task Force could provide a glimpse into what the Occupational Safety and Health Administration will expect from companies with 100 or more employees for them to meet the agency’s coming vaccination and testing requirements.
“The first guidance that came out related to federal workers. That gave us a sense of what was coming for federal contractors,” said Guy Brenner, a partner with Proskauer Rose LLP in Washington and head of the Government Contractor Compliance Group. “Now that we have guidance for federal contractors, I think that gives us a sense of what is going to be in the OSHA standard at least as far as vaccinations.”
President Joe Biden announced Sept. 9 that he had instructed OSHA to enact an emergency temporary standard. As of Oct. 6, the White House and OSHA hadn’t offered a specific time frame to issue the vaccinate-or-test measure.
It took OSHA five months to enact its Covid-19 emergency temporary standard for health-care employers following Biden’s Jan. 21 request for that action.
The task force’s federal contractor guidance, most recently updated Monday, says employers don’t need to provide on-site vaccinations to their workers because of the “widespread availability of vaccinations.” However, employers “should ensure their employees are aware of convenient opportunities to be vaccinated.”
Proof of vaccination will take more than an employee’s word.
The guidance says contractors must require documentation from workers.
Employees may provide a copy of an official vaccination record such as a Covid-19 vaccination record card from a health department or documents from a health-care provider or pharmacy. The records must include the type of vaccine, when the shots were given, and the name of the health-care professional or clinic administering the vaccine.
“Employees must certify under penalty of perjury that the documentation they are submitting is true and correct,” the guidance adds.
Acceptable formats for copies include a digital photograph, scanned image, or PDF.
Employers can’t accept a recent positive Covid-19 antibody test as proof of vaccination, according to the guidance.
Emily Harbison, a partner in employment and labor law with Reed Smith LLP in Houston, said the documentation requirement—if adopted for the OSHA standard—would be a change for many employers who prefer to accept their employees’ word on vaccination status.
“You can look through the Safer Federal Workforce guidance and pick out some of the interesting concepts such as how as it relates what proof people have to show,” she said. “I wonder if we’re going to see something similar in the OSHA guidance in the terms you can’t just use an employee’s saying or signing something that they’re vaccinated.”
Harbison said, “A lot of my clients say ‘Listen, we don’t want to be in charge of keeping a medical record.”
Pass the Test?
The guidance also explains what testing is acceptable for contractor employees not yet fully vaccinated.
Federal agencies may use any viral test that has been authorized by the Food and Drug Administration such as a PCR or antigen test, the guidance says. If the results are provided to the employee, the agency must establish a how the employee will share the results with the agency.
Brenner noted that task force guidance would require an unvaccinated contractor worker working a five-day week to be tested at least twice a weekly since a test result more than three days old is not accepted.
The Biden administration instructions to OSHA for call for testing “on at least a weekly basis.”
One major question about the OSHA standard is whether employees working strictly from home or remotely will be counted toward the 100-employee threshold.
The federal contractor guidance treats at-home and remote employees the same way as if they came into an office daily, requiring them to be fully vaccinated.
The requirements for federal contractors aren’t based on the number of employees. Instead, the threshold is based on the dollar amount of the services contract, about $250,000 for most agencies.