Federal Contractor Vaccine Mandate Hits a Wall 

A trade group doing business nationwide joined with contractors from multiple states to challenge President Biden’s requirement that all employees working pursuant to federal contracts in any state or territory of the United States be vaccinated. United States District Court Judge R. Stan Baker issued an injunction preventing enforcement of the mandate. While the issuing court sits in the Southern District of Georgia, and the parties to the lawsuit come from seven different states[1], the result is a nationwide ban on enforcement due to the involvement of the trade group Associated Builders and Contractors, Inc. This follows a similar order from the U.S. District Court for the Eastern District of Kentucky on November 30, 2021, which issued a preliminary injunction on the mandate in three states[2] (without nationwide implications).

Judge Baker found that the Biden administration exceeded its authority in requiring all employees of federal contracts to become vaccinated, and that states challenging the mandate are likely to be successful and that the Executive Order mandating vaccines for such employees (Executive Order 14042 and guidance) places an “extreme economic burden” on employers who contract with the government.

What does this mean for federal contractor employers? At this point, it means “hurry up and wait.” The Executive Order issued in September initially set a November 22, 2021 deadline for workers to be either vaccinated or suspended or dismissed (unless a medical or religious exemption applied). Theoretically, covered employers by now should have implemented a vaccine protocol; however, this ruling forbids the enforcement of these protocols pending the resolution of the lawsuit. For now, employers need to “put a pin in it” on vaccine requirements but remain in ready position to resume the mandates once the legal issues have been resolved or the injunction is lifted. Of course, employers seeking to voluntarily institute a vaccine mandate or masking/testing protocol are free to do so.

OSHA Emergency Standard Update 

Last month, our update included information about the OSHA Emergency Temporary Standard (ETS) which applies to all employers with over 100 employees. After its rollout on November 5th, and a ruling from the 5th Circuit, OSHA suspended the ETS (as of November 16) until litigation related to it resolves. Until we hear more from the Courts or OSHA, “put a pin in it” is also the current approach for large employers covered by the ETS for vaccine mandates.

However, for employers who wish to voluntarily institute a policy that would comply with the ETS, we have sample policies available.

Massachusetts PFML: What Do I Need to Know and Do Before the New Year? 

The question regarding the PFML is less about what employers need to know and more about what employees need to be told. Massachusetts employers must be aware of notice requirements for its Paid Family and Medical Leave (PFML) Law.

Massachusetts employers must give their employees notice of 2022 contribution rates and weekly benefit amounts under the PFML within the next 30 days (for new employees, within 30 days of hire). This notice can be given electronically or in any manner in which employee policies and updates are typically given (emails, newsletters, memoranda). The Commonwealth has provided template notice forms that employers can use for this requirement; they can be found here. There are templates in multiple languages for either employers with a workforce of 25 or more employees, less than 25 employees, and self-employed individuals. Employers also need to get a signed acknowledgement of receipt or refusal to acknowledge from each employee.

The most significant change relates to coverage of 1099-MISC workers. While workers in this group may have previously been informed that they were covered by PFML, updated guidance indicates that 1099-MISC workers are only covered if they do not qualify as independent contractors.

Employers must provide notice of available PFML benefits and current contribution rates to their W-2 employees. The 2022 contribution rate for employers with 25+ employees is 00.68%, and the rate is 00.344% for employers with fewer than 25 employees. Employers are responsible for sending contributions to the DFML for all employees. If over 50% of your workforce is made up of MA 1099-MISC contractors, this same notice requirement is in place.

All employers should review posting requirements and update posters as of January 2022. Both 2021 and 2022 posters in multiple languages can be found here.

We advise businesses to prepare written notices and employee acknowledgements immediately so that you can hit the ground running in 2022. As always, if you need assistance with preparation, customization, or advice, please contact us.

[1] The lawsuit was filed by contractors in Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia.

[2] The order from the Eastern District of Kentucky affected Kentucky, Ohio, and Tennessee.