As President Joe Biden travelled to a meeting of the United National General Assembly, the Administration announced that, in early November, COVID-19 travel restrictions would be relaxed for fully vaccinated travelers from all the previously restricted countries: the UK and Ireland, the 26 Schengen Zone countries, Brazil, China, India, Iran, and South Africa.

The details are not yet in place, but the expectation is that the Centers for Disease Control and Prevention (CDC) will recommend which vaccinations will be accepted and how many shots of each will be necessary. Further, a negative COVID-19 test also is expected to be required within 72 hours of boarding and there will be a contract tracing aspect.

The “essential” travel restrictions at the northern and southern land and sea borders are still in effect and have not yet been addressed.

Jackson Lewis attorneys will provide updates as they become available.

In light of the lingering COVID-19 pandemic and its impact on employee productivity and health care expenses, employers are considering imposing a premium surcharge on employees participating in the company’s health plan who are not vaccinated against COVID-19.

As we have discussed here, several federal laws must be taken into consideration when designing such a surcharge including the Affordable Care Act (ACA), the Americans with Disabilities Act (ADA), the Health Insurance Portability and Accountability Act (HIPAA), and wellness rules.  As employers engage in the requisite legal analysis, the opening question is, “How much can the surcharge be?”

Health insurance coverage must still be “affordable,” as defined by the ACA.  Under IRS regulations, when determining whether an employee’s cost of coverage is “affordable,” an employer generally may not consider any incentives offered under wellness programs.  The lone exception to this rule is a non-smoking incentive, where employers may use the premium amount for non-smokers in the affordability calculation. While the current administration’s policies point toward encouraging vaccination, at this time, there is no exception to complying with the ACA’s affordability rules for a vaccine surcharge.  As a result, health insurance must still be “affordable,” as defined by the ACA, or else penalties might apply, as we discussed earlier.

What is Affordable:  For plan years beginning in 2021, employer-sponsored coverage will be considered affordable if an employee’s required contribution for self-only coverage for the least-expensive plan option that meets ACA requirements does not exceed 9.83% of the employee’s household income for the year.  The IRS publishes the percentage rate each year; for 2022, the rate is 9.61%.  Because employers rarely have the household income information of their employees, the regulations under Internal Revenue Code Section 4980H provide three safe harbors under which an employer may determine affordability based on information readily available to the employer.

  1. The federal poverty line safe harbor.  This safe harbor provides employers a predetermined maximum amount of employee contribution that in all cases deems the coverage to be affordable.  The federal poverty line is $12,880 for an individual in 2021. (The amount is slightly different for any employees in Hawaii and Alaska.)  That amount divided by 12 and multiplied by 9.83% equals an allowable premium of $105.51 for 2021.
  1. The rate of pay safe harbor.  To calculate this amount, multiply 130 hours by the lower of (a) the employee’s hourly rate of pay as of the first day of the coverage period (generally the first day of the plan year) or (b) the employee’s lowest hourly rate of pay during the calendar month.
  1. The Form W-2 wages safe harbor.  Application of this safe harbor is determined after the end of the calendar year and on an employee-by-employee basis, taking into account the Form W–2 wages and the required employee contribution for that entire year.

Total Surcharges Cannot Exceed 30 Percent.  In determining the amount of a premium surcharge, employers must also consider the rule established under HIPAA (as amended by the ACA), which provides that it is allowable for employers to encourage participation in certain types of wellness programs by offering incentives of up to 30 percent of the total cost of an employee’s health insurance premiums for self-only coverage.  Thus, any surcharge imposed on an unvaccinated worker cannot be more than 30 percent of the total cost of an employee’s health insurance premiums for self-only coverage when combined with any existing surcharge.

What’s the Answer?  The allowable surcharge amount will vary for every employer depending on the cost of health insurance, any other surcharges or incentives under an existing wellness program, the level at which health insurance is currently subsidized, and the rate at which employees are compensated.

For more information about imposing a health insurance premium surcharge on unvaccinated employees or other health insurance related questions, please contact the author or the Jackson Lewis attorney with whom you regularly work.

After the announcement of President Biden’s COVID-19 Action Plan, employers across the country, including California started to consider how to implement vaccination and testing requirements, even ahead of clear guidance from the federal government.

California already has its own Emergency Temporary Standards (ETS) which were amended in June by Cal/OSHA. However, currently, the California ETS does not mandate vaccination and the Cal/OSHA Standards Board has indicated it does not plan to amend the ETS further until at least December.

California’s administrative agencies have issued some guidance regarding the handling of both testing and vaccination in the workplace.

Earlier in 2021, California’s Labor Commissioner issued an FAQ regarding COVID-19 Testing and Vaccination, which covers concerns related to regulations enforced by the Labor Commissioner.

Similarly, the Department of Fair Employment and Housing also updated its guidance regarding COVID-19, to include information pertaining to vaccination and related issues in March 2021.

As guidance about the federal requirements become clearer, employers should also review California-specific requirements related to vaccination and testing to ensure compliance with state and local requirements.

If you have questions on compliance with COVID-19 workplace requirements, reach out to a Jackson Lewis attorney to discuss.

Yesterday, the Safer Workforce Taskforce (Task Force) publicized a slew of new FAQs with one set containing surprising information regarding federal contractors.  To be clear, this is not the guidance contractors are waiting for with respect to implementation of President Biden’s Executive Order 14042 – Ensuring Adequate COVID Safety Protocols for Federal Contractors.  With that said, the new FAQs include an FAQ encouraging federal agencies to include vaccine requirements into contracts that are NOT covered by the President’s Executive Order:

  • Q: Can agencies incorporate vaccination requirements into contracts that are not covered by Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Contractors)?
  • A: Yes. Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law. This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.

This direction seems to “authorize” agencies to significantly expand the requirements of the Executive Order and undermine its express exclusion for subcontracts solely for the provision of products and, essentially, to expand coverage to any federal contract.  And, while it is unclear whether the Executive Order is limited to workers and employees working “on or in connection with” covered federal contracts, this FAQ might also be read to allow federal agencies to require all federal contractor employees to comply with vaccine requirements.

Given this new wrinkle, all federal contractors – and not those explicitly covered by the Executive Order – will need to review closely any new (or renewed) contracts for vaccine and testing clauses and provisions. 

Adding to the previous guidance for federal contractor employees working on-site at federal sites, another FAQ states that such on-site employees who are not fully vaccinated or refuse to disclose their vaccine status must provide proof of a negative COVID test no older than three days.  However, “if a contractor employee is regularly tested pursuant to an agency testing program, then they do not need to provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a federal building unless required to by the agency testing program.”

The Task Force has also provided an OMB-approved Certification of Vaccination form for on-site federal contractor employees.

[A]gencies will direct onsite contractor employees to complete the Certification of Vaccination form and keep it with them during their time on federal premises—they may be asked to show the form upon entry to a federal building or federally controlled indoor worksite and to a federal employee who oversees their work

[T]he agency will not maintain Certification of Vaccination forms from contractor employees at this time unless an agency has a system of records notice that covers its collection of this information from onsite contractor employees. Any such collection, storage, or maintenance of the attestation disclosure forms may implicate the Privacy Act and Paperwork Reduction Act.

Agencies may also invoke vaccine and testing requirements prior to a contractual requirement for on-site federal employees.

Prior to having a contractual requirement for its employees to be vaccinated and if authorized and consistent with the terms of the contract, an agency may work with a contractor to facilitate compliance by its onsite employees with the agency’s safety protocols, such as by having the company attest that all onsite contractor employees are fully vaccinated.

Federal contractor vaccine requirement information and guidance is evolving quickly, so please stay tuned for additional blogs.

Philadelphia court employees will be required to get vaccinated against COVID-19 as a condition of continued employment; they must be vaccinated, or offer proof of a medical exception, by November 15, 2021, the First Judicial District (FJD) has announced. Moreover, the FJD will review requests for religious exemptions on a case-by-case basis. Read more.

The Centers for Disease Control and Prevention (CDC) announced that as of October 1, 2021, all applicants for Green Cards must be fully vaccinated against COVID-19.

There are some exemptions from the requirement, but anyone who does not qualify for an exemption and refuses vaccination will be inadmissible.

The COVID-19 vaccine joins the list of other vaccines (including, among others, measles, mumps, polio, tetanus, and diphtheria) that have long been necessary for immigration. Vaccination against vaccine-preventable diseases has been required by federal statute since 1996 for every immigrant seeking entry or seeking to adjust status to legal permanent resident.

For now, the United States has accepted three COVID-19 vaccines, but that may be changed by the Advisory Committee on Immunization Practices (ACIP) as time goes on. ACIP is a group of 15 experts who make recommendations to CDC.

Blanket waivers to the COVID-19 vaccine requirement will be available for:

  • Those too young to receive the vaccine
  • People with medical contraindications
  • Individuals from countries with no or limited vaccine supplies

Waivers will not be available for individuals who have had COVID-19 and may still have immunity.

Religious or moral ground exemptions may be requested from USCIS (as has always been the case).

If you have questions about this new vaccination requirements, Jackson Lewis attorneys are available to assist you.

In June 2021, the U.S. Chamber of Commerce released the America Works Report, which is based on an analysis of more than 20 years of federal jobs and employment data. Among the findings is that there are approximately half as many available workers for every open job and the ratio continues to fall. While the COVID-19 pandemic is certainly part of the conversation, it is only one of many contributing factors to the growing shortage. Please see our full analysis here.

Testing for COVID-19 certainly has evolved over the past 18 months or so. As supply and allocation continue to face challenges, guidance on serological/antibody versus viral testing, testing in the workplace, informed consent, among other things have emerged to help guide coronavirus testing in the workplace. President Biden’s Path out of the Pandemic (the “Path”) seeks to drive higher levels of COVID-19 vaccination, while allowing COVID-19 testing as an option under certain components of the Path. Testing as an option to vaccination is likely to create more demand for a product already in high demand, and organizations may need to think more carefully about how the President’s Path may change their current COVID programs. More at home testing may be what is needed to help get further down the Path.

A significant part of the Path for employers is the anticipated rule from the Department of Labor for employers with 100 or more employees. The Path explains:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

Employers’ struggle to get more of their workers vaccinated for COVID-19 continues. There are several reasons, more than can be identified and explained here. But some include the vaccine’s only having FDA Emergency Use Authorization (EUA) versus full FDA approval (although that is wearing away), required reasonable accommodations for disability and sincerely held religious beliefs, fears about complications from the vaccine, etc.

This has not stopped employers from rolling out a bevy of creative measures to drive vaccination levels higher – gift cards, paid time off, raffles, health plan premium surcharges, increase in paid holidays, and other perks for those who get the vaccination. Some of these efforts have helped. Delta Airlines recent announcement of a $200 health plan premium surcharge is reported to have moved 4,000 of its 20,000 unvaccinated employees to get the vaccination. Still, according to health experts, levels of vaccination are not where they should be and the Delta variant continues to spread.

It is likely, at least in the short run, that a significant segment of the population will remain unvaccinated, notwithstanding the President’s Path, DOL guidance, and employer incentives. So, as weekly testing is likely to become more common, employers will need to manage that cadence at a reasonable cost and with minimal administration, and at home testing may be the answer for a lot of organizations. As reported by the Washington Post:

Most take-home tests, including BinaxNOW and Quidel’s QuickVue test, are antigen tests that look for protein pieces of the virus. PCR tests detect the virus’s genetic material.

Home tests are less sensitive than PCR tests and tend to be better at turning up positive results in people who are symptomatic than those without obvious signs of illness. But they offer some key advantages. Results usually show up in 10 to 15 minutes. And they can be administered at the point of care — nursing homes, clinics, schools, private residences. Most PCR tests are administered at testing sites and need to be sent to labs, meaning turnaround time is almost always 48 hours or more.

There are still lots of issues that need to be considered, not the least of which are the anticipated guidance from the DOL/OSHA and cost. On the issue of cost, one question has been whether at home or other point-of-care tests have to be covered under a group health plan. CMS guidance from earlier this year provides some insight:

Q4. Do point-of-care tests for COVID-19 have to be covered without cost sharing under the FFCRA?

Yes. The FFCRA and the CARES Act make no distinction between point-of-care and other tests; all COVID-19 diagnostic tests that meet one of the criteria outlined in section 6001 of the FFCRA, as amended by section 3201 of the CARES Act, must be covered without cost sharing, prior authorization, or medical management (including for asymptomatic individuals with no known or suspected exposure to COVID-19). 

However, the same guidance clarifies “plans and issuers are not required to provide coverage of testing such as for public health surveillance or employment purposes. But there is also no prohibition or limitation on plans and issuers providing coverage for such tests.

Nonetheless, as employers begin to ramp up to get on the President’s Path, at-home antigen testing for employees may be a significant part of their plans.    

During a press conference Thursday afternoon, President Biden announced a broad plan that will include as-yet undefined guidance to require federal contractors to “provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument.”  While the President’s remarks and the Administration’s corresponding plan suggest a vaccine mandate, the President’s Executive Order does not explicitly mandate a vaccination requirement.   The requirement, however, is expected to be established by the Safer Federal Workforce Task Force.

The President’s plan is encompassed in an Executive Order covering federal contractors (discussed below) and a White House broader publication entitled “Path Out Of The Pandemic – President Biden’s Covid-19 Action Plan.”  The text of the plan states

the President has signed an Executive Order to take those actions a step further and require all federal executive branch workers to be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government.

President Biden’s broader plan will also include a requirement that all employers with 100 or more employees “ensure” their workforces are either “fully vaccinated” or test negative for COVID-19 at least once a week.  Press outlets briefed on the plan today say that OSHA will issue an emergency rule to implement this aspect of the plan.  Additionally, the plan is to require employers to provide employees paid time off to get vaccinated.

The multi-faceted plan the President announced today comes on the heels of a mandate announced in August that all federal employees and on-site federal contractor employees either be vaccinated against COVID-19 or face repeated testing, and comply with strict social distancing and masking requirements.  A recorded webinar regarding the on-site federal contractor mandate can be found here.

Today’s Federal Contractor Executive Order

The President’s Executive Order, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” provides and outline, but stops short of requiring the vaccine and leaves the most critical details to a contract clause to be crafted by the Safer Federal Workforce Task Force.  Specifically, the Order the states:

[b]y September 24, 2021, the Safer Federal Workforce Task Force (Task Force) shall, as part of its issuance of Task Force Guidance, provide 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 (as described in section 5(a) of this order).

The Order does make clear that federal contracting agencies shall

ensure that contracts and contract-like instruments (as described in section 5(a) of this order) include a clause that the contractor and any subcontractors (at any tier) shall incorporate into lower-tier subcontracts.  This clause shall specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance).

It goes on to state the clause will:

…provide 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 (as described in section 5(a) of this order).

The Order is similar in many respects to the President’s federal contractor minimum wage order.  For example, “[t]his clause shall apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract.  Thus, the mandate will not apply to a federal contractor’s entire workforce.

As with the federal minimum wage, the COVID Order will apply to any new contract, as well as “new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument…”

Notably, the Order does not apply to manufacturers or suppliers of goods, to grants, to contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, or to employees who perform work outside the United States or its outlying areas.

Rather, the Order applies to:

  • Procurement contracts for services, construction, or a leasehold interest in real property;
  • Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
  • Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and
  • Contracts 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.

And explicitly does not apply to:

  •  grants;
  •  contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
  • contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation;
  • employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or
  • subcontracts solely for the provision of products.

Milestone and Effective Dates

  • September 24, 2021: the Safer Federal Workforce Task Force will issue its guidance/draft clause;
  • October 8, 2021: contracting agencies shall take steps to include the clause in contracts entered into on or after October 15, 2021 that are not covered by the Federal Acquisition Regulation;
  • October 15, 2021: the date when the clause should begin appearing in covered contracts.

As we know you are, we are anxious to learn more about the task force guidance and clause and will keep you posted as we learn more.

Over its regular and two special sessions, the Texas legislature has passed several bills that are or soon will be in effect and will impact employers’ workplace policies and procedures. Additional special legislative sessions yet may be held and, with them, more changes may be on the horizon. Read more.