You may have read recently that the federal government’s new OSHA emergency temporary standards regarding COVID vaccination and other precautions in the workplace have been temporarily put on hold while litigation winds its way through the courts. These OSHA standards, if and when they are implemented, would apply to private employers with 100 or more employees.
While it is true that the 5th Circuit Court of Appeals has issued a temporary stay, it is unclear whether or not that stay will ultimately disrupt or delay implementation.
However, this does not affect the separate requirements for federal contractor employers.
Potential constitutional and/or jurisdictional issues regarding OSHA’s authority to regulate in this space and the OFCCP’s broad authority over federal contractors are very, very different things. For one thing, being a federal contractor is (technically) a choice, and that choice comes with a universe of “strings” attached, so whether and to what extent the federal government can be seen as “forcing” policy on federal contractors involves a very different analysis. So far, those requirements are marching steadily forward.
The White House Office of Budget and Management has now published notice that the new COVID requirements will “promote economy and efficiency in [f]ederal contracting,” a key finding necessary for the Department of Labor to enforce these new requirements.
Note that the federal contractor deadline for vaccination was recently changed to match the deadline set by the new OSHA standards that are currently stayed. However, the current stay on the OSHA standards does not affect the federal contractor requirements or deadline. The OSHA standards do not have to be in effect for the federal contractor deadline to be enforced.
If you have questions about this or any other federal EEO/AA obligations, feel free to reach out to us at BCGi@Biddle.com.