As instructed, the Safer Federal Workforce Task Force has modified and updated its guidance on implementation of Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors.  Most recently, the Task Force released new FAQs providing additional guidance for contractors working to implement the requirements of the Executive Order.  A number of the FAQs significantly expand the vaccination requirement to employees and workplaces of companies “affiliated” with federal contractors, and others allow more leeway in enforcement by contracting agencies and options for unvaccinated employees to continue working. Others provide guidance for addressing employees who refuse to be vaccinated or are in the process of requesting an accommodation.  Importantly, during an informational webinar hosted today by the Administration, it was emphasized that contractors’ good faith efforts towards compliance will be acknowledged.

Expanded Coverage

The new FAQs addressing expand coverage based on corporate affiliation are located under the “Scope and Applicability” section of the Taskforce online FAQs and read as follows:

  • NEW Q: If a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, are the employees of that affiliate considered covered contractor employees subject to COVID-19 workplace safety protocols for Federal contractors established through Task Force Guidance?
  • A: For purposes of Task Force Guidance, business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.  Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees. An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.

While this FAQ appears to give a nod to OFCCP’s “single entity” test, it appears to be broader and more inclusive and highlights the fact that the analysis for coverage of this executive order differs from that used to establish affirmative action obligations and corresponding OFCCP jurisdiction.

This expanded view is also being applied to covered contractor workplaces:

  • NEW Q: If the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor that does not otherwise qualify as a covered contractor under Task Force guidance, is the workplace considered a covered contractor workplace?
  • A: … If any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.

This FAQ covers at least two scenarios.  If a covered contractor shares a workplace/building with an affiliated company, the employees of the affiliate are also subject to the Guidance.  Moreover, if a covered employee of a federal contractor visits a facility of an affiliate – or is even likely to be present – the employees of the affiliate at that facility are also subject to the Guidance.  These FAQs appear contradictory to definitions in the Guidance itself with respect to covered workers and workplaces, which state specifically that the touchstone of employee and workplace location coverage is the entity holding a covered government contract.

Other new FAQs in the Vaccination and Safety Protocols section are more helpful by offering a softer enforcement approach, as the below reflect.

  • NEW Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?
  • A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.

 

  • NEW Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
  • A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.

 

Regarding unvaccinated employees the new FAQs provide additional guidance around compliance:

  • NEW Q: What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?
  • A: A covered contractor should determine the appropriate means of enforcement with respect to its employee at a covered contractor workplace who refuses to be vaccinated and has not been provided, or does not have a pending request for, an accommodation. This may include the covered contractor using its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.  One model for enforcement among employees with respect to non-compliance with a vaccination requirement is that being followed by Federal agencies. Guidance for Federal agencies is to utilize an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance. Guidance for Federal agencies is that employees should not be placed on administrative leave while the agency is pursuing an adverse action for refusal to be vaccinated but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites. During the time period of enforcement, the covered contractor must ensure the covered contractor employee at a covered contractor workplace is following all workplace safety protocols for individuals who are not fully vaccinated.  An agency may determine that a covered contractor employee who refuses to be vaccinated in accordance with a contractual requirement pursuant to EO 14042 will be denied entry to a Federal workplace, consistent with the agency’s workplace safety protocols.

 

  • NEW Q: When a covered contractor employee is not vaccinated because a covered contractor has provided the employee with an accommodation, what workplace safety protocols must the employee follow while in a Federal workplace?
  • A: The Federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a Federal workplace. As noted in Task Force guidance, in most circumstances individuals who are not fully vaccinated need to follow applicable masking, physical distancing, and testing protocols. However, there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a Federal workplace, or the location of their work at a Federal workplace, requires heightened safety protocols. Further, in some cases, an agency may determine that the nature of a covered contractor employee’s responsibilities at a Federal workplace are such that no safety protocol other than vaccination is adequate—in that case, covered contractor employees who are not fully vaccinated would be unable to perform the requisite work at the Federal workplace. Such circumstances do not relieve the contractor from meeting all contractual requirements.  In order for agencies to assess appropriate safety measures for contractor employees in Federal workplaces, contractors subject to a contractual requirement for maintaining COVID-19 workplace safety protocols pursuant to Executive Order 14042 should generally notify their contracting officers when one of their employees who works onsite at a Federal workplace has received an exception to the requirement to be fully vaccinated.

Along these lines, we suggest that covered federal contractors – including those who have received a request to modify an existing contract to include the clause – proactively contact their contracting officers regarding challenges they face in implementing the vaccine requirement.  As reflected in this FAQ, that may allow the contracting officer to provide some leeway in compliance.

We will continue to monitor the Task Force Guidance and FAQs for further developments.

The EEOC has announced that the EEO-1 reporting portal will not accept 2019 or 2020 EEO-1 reports after November 15, 2021.  The deadline to file was October 25, 2021.  Despite a year filled with challenges and delays brought on by COVID-19 and the complexities of filling two years worth of reporting at the same time, EEOC has declined to provide any more time for filers to comply beyond this short two-week grace period.  The notice states however that

[i]f you have already requested assistance from the Filer Support Help Desk and have a pending help desk ticket, we are in the process of addressing those requests and will ensure that you are able to file.

As of 12:01 a.m. ET on November 8, 2021, the United States’ country-specific 14-day COVID-19 travel restrictions that have been so troublesome and disruptive for individuals and businesses will be eliminated. Instead, protecting the country from COVID-19 will focus on vaccination status.

President Joe Biden’s “A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic” provides that, on November 8, 2021, the entry by air of nonimmigrants (not U.S. citizens, immigrants, or green card holders) who are not fully vaccinated will be suspended, with certain exceptions and requirements. The Proclamation will not apply to passengers already on airplanes at 12:01 a.m. ET on November 8 and clearly states that the new restrictions will not affect the issuance of visas. One exception is for individuals whose entry is in the “national interest” – National Interest Exceptions (NIEs), it seems, will still be on the list of those who are not fully vaccinated (although they must get vaccinated within 60 days of entry into the country, unless they qualify for an exemption).

The list of nonimmigrants excepted from the fully vaccinated requirement includes:

  • Crew members of airlines (or sea crew members) whose operators adhere to all CDC guidelines;
  • Individuals in certain diplomatic-type visa status;
  • Individuals whose age makes vaccination inappropriate;
  • Individuals involved in certain clinical trials;
  • Individuals for whom vaccination is medically contraindicated;
  • Individuals who have received emergency or humanitarian exceptions from the CDC;
  • Individuals (except for those seeking to enter in B status) seeking to enter from countries where COVID-19 vaccination is limited — including countries with less than 10% of their total population fully vaccinated or as otherwise determined by the CDC;
  • Members of the U.S. Armed Forces, their spouses, and children; and
  • Any noncitizen or group of noncitizens whose entry would be in the national interest as determined by the Secretaries of State, Transportation, Homeland Security, or their designees.

Where an individual qualifies for entry based on at least one exemption, they must still:

  • Provide proof of a pre-departure negative COVID-19 test;
  • Wear a face mask throughout their travel;
  • Arrange for post-arrival COVID-19 testing prior to arrival;
  • Provide proof of arrangements for self-quarantine or self-isolation upon arrival; and
  • Agree to become vaccinated within 60 days of arrival if medically appropriate, unless the stay is determined to be sufficiently brief, the individual is participating in certain clinical trials, the individual has already received a COVID-19 vaccine that is authorized in their country, or the CDC determines vaccination is not warranted.

The Proclamation directs the Secretary of Health and Human Services, through the Director of the CDC, to implement the Proclamation and define all the requirements, including, but not limited to, what constitutes “fully vaccinated,” how individuals must prove compliance with all applicable CDC recommendations, and what countries will be on the list of places where vaccination is limited.

Please contact a Jackson Lewis attorney if you have any questions.

The decades-old I-9 Employment Eligibility Verification process may be in for some changes. The Department of Homeland Security is requesting “public input” regarding the document examination process.

Employers interested in the permanent continuation of Form I-9 flexibility might be encouraged by the agency’s official announcement on October 26, 2021. While the request is for “information and program-planning purposes” and any changes would be at the agency’s sole discretion, changes may be considered as long as they “offer an equivalent or higher level of security.” These changes likely are part of the administration’s move toward modernization in the I-9 process.

Since March 2020, companies that have been operating remotely due to the COVID-19 emergency have been able to inspect Section 2, Form I-9 documents virtually, over video link, or by fax or email. In April 2021, the DHS clarified that, for companies continuing to operate at least partially remote due to COVID-19, in-person inspection applied only to employees who report to work at a company location on a “regular, consistent or predictable basis.” DHS announced that the ongoing flexible procedures would continue at least through December 31, 2021. The agency now appears to be considering making some remote I-9 procedures permanent.

Through the Request of Information, DHS seeks comments from employers of all sizes, trade groups, recruiting and onboarding organizations, researchers, policy experts, and other members of the public. The department has identified certain questions for guidance purposes but notes that the list is non-exhaustive. The questions range from those geared toward understanding employers’ experiences with the technology involved in I-9 flexibility to those about the results from subsequent E-Verify or physical examinations. DHS wants to know how often the subsequent results were inconsistent with the remote examinations in determining whether the documents presented were genuine and, in fact, relate to the person presenting the documents for inspection.

DHS also is interested in finding out how many employers successfully used “authorized agents” for verification purposes due to COVID-19. Further, it wants to know whether conditions on using flexibility (such as required enrollment in E-Verify, document or image quality requirements, document retention requirements, or required training) would “impact an employer’s desire or ability to utilize” flexibility.

Public input is due within 60 days, or by December 27, 2021. For information about the DHS request or details about the flexibility requirements and how to ensure your company is in compliance, please reach out to your Jackson Lewis attorney.

Since the drama in passing the amended COVID-19 Emergency Temporary Standards (ETS) in June, the Cal/OSHA Board has been relatively quiet, though discussing a more permanent COVID-19 Standard. In the meantime, federal OSHA took the spotlight with President Biden’s COVID-19 Action Plan.

Currently, the Cal/OSHA ETS is set to expire on January 14, 2022. But unlike the main character in Disney’s Frozen, it appears Cal/OSHA does not intend to let it go. Recently Cal/OSHA released a proposed second re-adoption of the ETS.

Under the proposal, much of the ETS would remain the same as the Standards passed in June. Here is a summary of the key updates proposed:

Exclusion from Worksite

Consistent with the current ETS, employers must still exclude employees who are positive for COVID-19 until return-to-work requirements are met. Employers also must exclude employees who have had close contact with a positive individual unless the employee is fully vaccinated and asymptomatic.

Currently, employees who have a close contact but are fully vaccinated and remain asymptomatic don’t need to be excluded from the workplace. Under the proposed amendments, these employees must now wear a face-covering in the workplace for 14 days, maintain social distance for 14 days, and get a COVID-19 test three to five days after the close contact in order to take advantage of the exception.

Return-to-Work Criteria

Under the proposed revisions, persons who had close contact, but never developed COVID-19 symptoms may return to work (1) 14 days after the last known contact, (2) 10 days after the last known contact if they wear a face covering and socially distance for 14 days after the close contact, or (3) 7 days after the last known close contact if the person tests negative for COVID-19 using a polymerase chain reaction (PCR) test with the specimen taken 5 days or later after the close contact and if the individual wears a face covering and socially distances from others for 14 days after the close contact.

Persons who had close contact and developed COVID-19 symptoms can only return to work when (1) at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without using a fever-reducing medication, (2) COVID-19 symptoms have improved, and (3) at least 10 days have passed since the COVID-19 symptoms first appeared.

The proposed revisions would also remove the return-to-work exemptions for essential critical infrastructure during staffing shortages.

Outbreaks and Testing

Employers, under the proposed revisions, would need to test even vaccinated, asymptomatic employees in an outbreak setting. An outbreak under the ETS is defined as three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

Moreover, employers will be required to provide testing for all close contacts, including vaccinated employees.

Face Coverings

Though state and local guidance regarding face coverings has fluctuated since June 2021, the ETS guidance will remain mostly the same.

However, both vaccinated and unvaccinated employees must wear face-covering during screening.

The Standards Board has indicated that the face coverings requirements in the ETS are intended to be the minimum requirement, while state and local public health departments may make more stringent mandates.

If approved, the revisions to the ETS would go into effect on January 14, 2022, and remain in effect until April 14, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Relying on the parties’ written employment agreement and compensation plans, a California federal district court held that an at-will employee who was laid off due to COVID-19 could not recover commissions that were not fully earned prior to his termination.  Peak v. TigerGraph, Case no. 21-cv-02603 (Sept. 7, 2021).

Background

The employee, a sales professional residing in Massachusetts, was recruited by the Information Technology company based in California, to work as a sales manager.  In January 2018, the parties entered into a written employment agreement, which provided, in relevant part, that (1) employee’s compensation consisted of base-salary plus a commission; (2) his employment was “at will”; and (3) disputes regarding his employment would be governed by California law and decided by California courts.  The parties also executed a sales compensation plan at this time.

In August 2018, the employee began to develop a relationship with a potential client.  In 2019 and 2020, the employer executed new compensation plans, which replaced the one entered when the employee began his employment.  The new compensation plans stated:  “Commissions are considered ‘Earned’ when the Company received payment in full from the customer.”

After executing the new compensation plans, on May 13, 2020, the employee received Statements of Work (SOW) for 20 anticipated projects from the client, from which the employee would have earned substantial commissions.  The employee forwarded the SOW to the employer’s Chief Operating Officer to execute.  The next day, the employee was informed that he was “being laid off due to the financial impact on the COVID-19 pandemic.”  No other sales representatives were laid off, and the employee did not receive any commissions.

The employee filed suit in Massachusetts, and the case was transferred to the California federal district court based on the forum-selection clause of the employment agreement.  The employee brought claims against his former employer for breach of contract/covenant of good faith and fair dealing, intentional interference with contractual relations, civil conspiracy, and violations of the Massachusetts Wage Act.

No Breach of Contract or Implied Covenant of Good Faith and Fair Dealing

The court held that there was no breach of contract, reasoning that there was no commission earned at the time the employee was terminated and, thus, the employer’s “refusal to pay him does not constitute breach.”

The court also rejected the employee’s implied covenant of good faith and fair dealing argument that the employer should be prohibited from terminating him in order to avoid paying the commissions owed when he was “on the brink” of earning the commissions.  The court cited the “at will” relationship set forth in the employment agreement and the fact that the company’s annual commission plans included the following clause:  “As a reminder, employment is on an at-will basis (except as otherwise provided by law) and may be terminated with or without cause, and with or without notice, at any time.”

Based on these express provisions to which the employee had consented by signing, the court concluded that the employer “cannot be held liable for breach of contract or breach of the implied covenant for doing what they were expressly permitted to do by the terms of the employment agreement:  terminate [employee] for any reason.”  The court also relied on the clear language in the commission plans that the employee was only entitled to a commission on a deal that resulted in a payment to the employer.  The court reasoned that the employer could not be held liable for a breach of the implied covenant for doing what it was entitled to do pursuant to the commission plans, namely “refuse to pay [employee] a commission for which [employer] did not receive payment.”

No Violation of Massachusetts Wage Act

Massachusetts Wage Act (“Wage Act”) section 148 expressly states that it only protects claims for a commission that has “been definitely determined and has become due and payable.”  While Massachusetts court have found employers in violation of the Wage Act and breach of the covenant of good faith and fair dealing where they terminate an employee for the purpose of avoiding payment of commissions, those cases involve a commission that the employee has earned under the terms of the commission structure.  The court concluded that the protection under the Wage Act did not apply because the employee did not yet earn the commissions under the express terms of the new compensation plans with his employer.

Conclusion

This case underscores the importance of written employment agreements that reflect the intentions of the employer, as well as having employees agree to the fact that he/she is an at-will employee (or other key contract terms) if subsequent agreements are signed with that employee, as they were in this case.  Jackson Lewis attorneys are available to answer any questions you may have regarding employment-related litigation, including COVID-related suits, and to assist with any other employment law issues, including drafting employment agreements.

As long as they can show that they are fully vaccinated against COVID-19, foreign travelers will be allowed to visit the United States beginning November 8, 2021, according to the Biden Administration.

Until now, we knew only that the 14-day travel restrictions and the northern and southern border restrictions would be lifted sometime in November. Now, it has been reported that all these restrictions will be lifted, and new vaccination requirements will take effect on November 8, 2021.

On September 20, 2021, the Administration announced it would lift the 14-day travel restrictions that affected individuals trying to enter the United States from China, Iran, the UK and Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and India in November. The quid pro quo for that was that all foreign travelers from any country would have to be fully vaccinated and provide a negative COVID-19 test three days before their proposed entry date to board an airplane to the United States.

On October 14, 2021, the Administration announced the northern and southern border restrictions that had been in place since March 2020 would be lifted when the 14-day travel restrictions were lifted and, at that time, fully vaccinated individuals could enter for any purpose. One proviso: unvaccinated individuals will still be able to enter the United States until January 2022 at land and sea ports of entry, but only if they are entering for “essential” purposes – such as work.

Details about exceptions or exemptions have not been released. We will provide updates as soon as those are available.

The United States will open its northern and southern land borders to fully vaccinated foreign nationals sometime in November 2021. When this happens, it will be the first time since March 2020 that these individuals will be able to enter the United States from Canada and Mexico for “non-essential” purposes, such as tourism, shopping, and family gatherings.

The reopening is expected to occur in two phases. During the first phase, fully vaccinated foreign nationals will be able to enter for non-essential purposes. Unvaccinated individuals will still be able to enter for essential purposes, including for work. During the second phase, scheduled to go into effect in early January 2022, all foreign nationals, whether entering for essential purposes or not, will have to be fully vaccinated. The expectation is that there will be limited exceptions, for example for children.

The “essential travel” restrictions applied only to land and sea borders. Foreign nationals have been able to fly into the United States from Canada or Mexico if they met the COVID-19 testing requirements. In November, however, new COVID-19 vaccination and testing requirements will be in place for all air travel. All foreign nationals seeking to enter the United States from anywhere, with limited exceptions, will have to be fully vaccinated, as well as show proof of a negative COVID-19 test taken within three days of departure. Unvaccinated U.S. citizens and legal permanent residents will need to provide evidence of a negative COVID-19 test taken within 24 hours of boarding a flight to the United States and undergo testing upon arrival.

The United States is a little late to the border game. Canada reopened its border to fully vaccinated Americans on August 9, 2021, and to other fully vaccinated foreign nationals on September 7, 2021. It is still not clear exactly when the new U.S. rules will become effective. The United States already announced that the 14-day travel restrictions on China, Iran, the UK and Ireland, the 26 Schengen Zone countries, Brazil, South Africa, and India are scheduled to be lifted sometime in “early” November. The northern and southern border restrictions will be lifted at the same time. We are still awaiting official guidance on documentation requirements and the implementation date.

Jackson Lewis attorneys will provide updates as they become available.

The State Department cannot rely on presidential proclamations to refuse to adjudicate visas, Judge James E. Boasberg in the U.S. District Court for the D.C. District has held.

Judge Boasberg said nothing about what the State Department needs to do in line with its opinion, but established that the Administration’s travel restrictions did not include visa restrictions.

Since the issuance of the Presidential Proclamations restricting the entry of foreign nationals who have spent any time during the 14 days prior to their entry in over 30 countries (China, Iran, the UK and Ireland, the Schengen Zone countries, Brazil, South Africa and India), most U.S. Consulates abroad have been refusing to issue or even schedule visa interview appointments for individuals who do not qualify for National Interest Exceptions (NIEs) to the Proclamation. This has meant that even foreign nationals who were willing to wait out the 14 days in non-restricted countries would have difficulty getting a visa. It was a Catch-22. If they stayed in a restricted country, they might not get a visa because they did not qualify for an NIE and if they went to a non-restricted country, they might not get visas because they were third-country nationals.

The court recognized that this whole issue may soon become moot because the Biden Administration has said that the 14-day travel restrictions will be lifted in early November. But even when the restrictions are lifted and the Consulates go back to issuing visas rather than NIEs, it is likely that backlogs and delays will persist.

Visa processing at U.S. Consulates abroad was effectively suspended from March through July 2020. Since then, Consulates started a phased resumption of services. However, services are still not fully restored due to various COVID-19 restrictions abroad and many U.S. Consulates are not even fully staffed. As Consulates rely on visa fees rather than government funding, some have been unable to hire new staff due to the lack of fees. This means that it may be difficult for Consulates to staff up to eliminate backlogs.

If you have any questions about the effect of the D.C. Court’s ruling, Jackson Lewis attorneys are available to assist.