Management Update

Biden’s Path Out of the Pandemic: Employers Aren’t Out of the Woods Yet

By: Fred Preis, Rachael Jeanfreau, and Philip Giorlando

Late last week, President Biden released his updated “Path Out of the Pandemic” plan, which mandates COVID-19 vaccinations for certain employees of covered federal government contractors/subcontractors, Medicare/Medicaid-participating healthcare employers, and federal agencies. The plan also requires the U.S. Occupational Safety and Health Administration (OSHA) to develop a rule requiring employees of all employers with 100 or more workers to be vaccinated or provide a negative COVID-19 test result on at least a weekly basis before coming to work. Although the mandates are not yet in effect, employers can begin to prepare by familiarizing themselves with the new requirements, considering how their businesses might be affected, and planning next steps.

Employers with 100 or More Employees: Vaccination Requirement or Negative Test Result In lieu of Vaccination

President Biden’s Path Out of the Pandemic plan states that OSHA is developing an emergency rule to require all employers with 100 or more employees to (1) require their employees to be fully vaccinated or provide a negative COVID-19 test result at least once per week before coming to work; and (2) provide paid time off for employees to get vaccinated or recover from post-vaccination side effects.

Although the federal government has not yet announced when OSHA might issue the emergency temporary standard for employers with 100 or more employees, it is expected to occur in the coming weeks.

Certain Federal Contractors & Subcontractors: Vaccination Requirement

As part of the “Path Out of the Pandemic” plan, President Biden also issued a new Executive Order that requires some—but not all—federal government contractors and subcontractors to comply with the Safer Federal Workforce Task Force Guidance, which Guidance is to be issued by September 24, 2021. It is expected that all employees working on or in connection with a covered federal government contract/subcontract will be required to receive the COVID-19 vaccination. Unlike the OSHA rule for employers with 100+ employees, the Order does not allow covered employees to provide a negative COVID-19 test result on a weekly basis in lieu of receiving the vaccination.

Generally, the Order covers contracts (or contract-like instruments) that exceed the current simplified acquisition threshold of $250,000, and which are entered into, extended, renewed, or under which an option is exercised, on or after October 15, 2021, for any of the following:

the procurement of services, construction, or a leasehold interest in real property;
services covered by the Service Contract Act;
concessions; and
services offered to federal employees, their dependents, and the general public in connection with federal property or lands.

“Subcontractors (at any tier)” to executive-agency contracts for services, construction, or a leasehold interest in real property are also covered.

The Order does not cover:

grants;
contracts or contract-like instruments with Indian Tribes;
contracts with a value equal to or less than the FAR simplified acquisition threshold of $250,000;
agreements involving employees performing work outside the U.S.; and
subcontracts solely for the provision of products.

Further, it appears that the Order does not apply to federal contractors/subcontractors with manufacturing contracts (Walsh-Healey Act contracts) or financial institutions that serve as a depository of federal funds.

Although the Order is effective immediately, its requirements (and the requirements of future Guidance to be issued under the Order) will apply to contracts or contract-like instruments entered into, extended, renewed, or under which an option is exercised, on or after October 15, 2021. The Order states that federal contractors with existing contracts or pending solicitations are “strongly encouraged, to the extent permitted by law” to follow the new rules.

It appears that only certain employees—those working on/in connection with a covered contract—may be subject to the Order’s vaccine mandate, as the Order does not appear to necessarily cover all employees of covered federal contractors/subcontractors. However, if a contractor has 100+ employees, it appears that those employees not covered by the Order would still be subject to the OSHA rule requiring them to get the COVID-19 vaccination or provide a negative COVID-19 test result on at least a weekly basis.

Health Care Workers at Medicare and Medicaid-Participating Hospitals and Other Facilities: Vaccination Requirement

In addition, the Centers for Medicare & Medicaid Services will require COVID-19 vaccinations for employees in most health care settings that receive federal Medicare or Medicaid reimbursement, including hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The requirement is expected to cover nursing home and hospital staff, as well as other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.

Many Questions for Employers Remain

In light of the new rules, employers will need to consider many issues, with a tailored approach for each employer that depends on numerous factors, including employer location and industry. Such issues and unanswered questions include:

handling employee requests for exemptions for protected legal activities or characteristics (such as religious and/or medical accommodations);
whether there will be other exceptions to the vaccine/testing requirements, and how employers should address such exceptions;
whether employers can ask job applicants if they have been vaccinated and/or if they are willing to be tested frequently;
whether employers must pay for the cost of vaccination, to the extent the cost is not otherwise covered by group health insurance or the government;
whether employers must pay for time spent by employees to be vaccinated or tested;
whether employers will pay employees who become ill as a side effect of the vaccine;
what process should employers use to ensure compliance by both employees and non-employees who want to enter company property—including customers, clients, vendors, and suppliers—and whether businesses can require temporary employees and employees of third parties to provide proof of compliance;
what records must employers maintain to prove compliance, including issues related to confidentiality of personnel records; and
what should employers do now before the new rules go into effect.

Although some employers will welcome the new requirements, the rules will pose numerous challenges for others. Please contact our Firm if you want to discuss this further.

Executives Grabbing a Mop: Salary Exempt Employees Performing Non- Exempt Work During the Aftermath of Hurricane Ida

By Fred Preis, Rachael Jeanfreau, and Philip Giorlando

Employers should be cautious as they call their salary-exempt employees back to work and ask them to perform non-exempt work during the aftermath of Hurricane Ida. Generally, to qualify as salary exempt, an employee must both be paid a salary of at least $684 a week and must perform certain specific duties that satisfy one of the “white collar” exemptions to the wage and hour law’s overtime and minimum wage requirements. The most common exemptions are the executive, professional, and administrative exemptions.

Although a salary exempt employee can perform some non-exempt work and not lose exempt status, that employee must still perform “primarily” salary exempt work. Otherwise, the employee may lose the exemption. The Department of Labor regulations provide that salary exempt employees can perform non-exempt work during an “emergency” without losing the exemption, but the definition and time limit for an “emergency” is ambiguous. Employers should be careful as their salary exempt employees return to work and should limit the nonexempt work that these employees perform. Otherwise, the employer could be subject to fines, back pay, and other penalties from the Department of Labor.

l damages.

FEMA Critical Needs Assistance Already Hitting Louisiana Bank Accounts

By Fred Preis, Rachael Jeanfreau, Philip Giorlando

At Breazeale, Sachse, & Wilson, L.L.P., we know that people are at the heart of our clients’ businesses. After Hurricane Ida damaged much of Southeast Louisiana and beyond, we want to help employers get back on their feet and get their employees back to work.

As part of FEMA’s recovery efforts for Southeast Louisiana residents impacted by Hurricane Ida, FEMA is offering $500 per household in Critical Needs Assistance to cover the costs of life-sustaining items such as food, water, first aid, prescriptions, necessary baby products, and fuel. To be eligible for Critical Needs Assistance, applicants must complete a FEMA registration, have a primary residence located in an area designated for Critical Needs Assistance, which would include Southeast Louisiana, and assert that they have critical needs and request financial assistance for those needs. If the Applicant includes a bank account for direct deposit of the Critical Needs Assistance, the transfer of the funds is typically very quick, with many Louisianians who registered for FEMA last week already receiving funds. To apply for FEMA’s Critical Needs Assistance, an individual should go to https://www.disasterassistance.gov/.

The attorneys and staff at Breazeale, Sachse, & Wilson, L.L.P. stand ready to assist with recovery efforts and any legal needs as communities and businesses open back up and return to normal.

s to take advantage of religious objections.

All Hands on Deck: Employers Must be Cautious of Overtime Laws During Hurricane Ida Recovery

By Fred Preis, Rachael Jeanfreau, Philip Giorlando

Employers across Southeast Louisiana, including in industries such as healthcare and hospitality, are calling on their employees to return to work and respond to the needs in the community. Employers during these times must be careful to continue following all applicable Federal, State, and local wage and hour laws, including Federal overtime laws, as employees who typically work forty hours or fewer per workweek may begin working over forty hours per workweek. Employers must be sure to pay hourly, non-exempt employees who are subject to overtime laws one and one-half times their regular rate of pay for every hour worked over forty in the workweek.

Although employers may be overwhelmed in the aftermath of Hurricane Ida and may be facing technological difficulties or problems with their normal time-keeping systems, it is important to remember that businesses must still adhere to all wage and hour requirements, including accurately tracking employees’ work hours and compensating them for all time worked. Violations of Federal wage and hour laws, including overtime laws, can lead to substantial fines by the Department of Labor, back pay for employees, and liquidated damages.

Hurricane Ida: Where to go for help?

By Fred Preis, Rachael Jeanfreau, Philip Giorlando

Two main disaster assistance programs have been established to help: FEMA for individuals and the SBA for businesses. FEMA is providing disaster assistance to individuals for home damage, evacuation expenses such as food and temporary housing, and is offering a flat $500 to cover any initial losses from the storm. Individuals should go to https://www.disasterassistance.gov/ to apply for FEMA assistance. The SBA has a Virtual Business Recovery Center https://disasterloanassistance.sba.gov/ela/s/ to provide much needed financial services through low interest business loans.

As we continue through this difficult time, the attorneys at Breazeale, Sachse, & Wilson, L.L.P. are ready to help. Please contact us with any issues.

The ARPA COBRA Notice Deadline is Just Around the Corner

By Jerry L. "Jay" Stovall

You may recall that under the American Rescue Plan Act of 2021 (ARPA), group health plans that are subject to COBRA must provide coverage to assist eligible individuals (AEI) at no cost between April 1, 2021, and September 30, 2021 (the Subsidy Period). In addition, plan sponsors must notify affected AEIs within a window (45 to 15 days) before the premium assistance will end. So, plan sponsors must issue notices to AEI’s whose continuation coverage runs through September 30 no later than next Wednesday, September 15, 2021.

Plan sponsors may create their own notice, but the Department of Labor has provided a model notice that can be used.

If an AEI is eligible to continue COBRA coverage beyond September 30^th, they will be required to pay the normal COBRA premium for that extended coverage. The notice should include this information.

Employers take-away: If you have not already determined who is entitled to this notice, created your own notice, or copied the DOL model notice, you don’t have much time left.

President Biden Outlines New Vaccination Plan

By Jerry L. "Jay" Stovall

On September 9^th President Biden outlined his multi-prong plan to combat the COVID-19 epidemic.

Most significantly to employers, the President directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees require that employees either be fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis. Then ETS will include language requiring employers to provide paid time off for employees to be vaccinated or recover from being vaccinated. It is unclear whether or not the ETS will contain a similar mandate for employees to obtain a COVID-19 test. Under some circumstances, an ETS can become effective immediately upon publication.

The President will issue a new Executive Order requiring certain government contractors to comply with guidance that will be published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance) later this month. We expect the guidance to require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on a federal site.

The President also indicated that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccinations for workers in most health care settings as a condition to continue to receive Medicare/Medicaid reimbursement.

It is a certainty that the new ETS and guidance will face judicial challenges to their enforcement, not the least of which will address OSHA’s authority to penalize employers for failing to require their employees to be vaccinated or tested.

Employer take away:

It is apparent that a great many details of the President’s plan will need to be fleshed out in the yet-to-be-published ETS and guidance. While it would be a good idea for employers to determine if the new mandates are likely to apply to them and to start to consider how they are going to implement policies to comply, Employers do not have to take any immediate action.

As always, don’t hesitate to reach out to me directly if you have any questions.

Jay Stovall

Democrats Propose Bill to Increase Maximum Penalty for Osha “Willful” Violations to $700,000 as Part of $3.5 Trillion Budget Reconciliation Package

By Jerry L. "Jay" Stovall

The proposed penalty increase is part of a $707 million OSHA budget increase through 2026 that is contained in President Biden’s $3.5 trillion budget reconciliation package. President Biden has repeatedly expressed his intent to ramp up staffing levels at OSHA to facilitate increased inspections and investigations. This budget increase will allow OSHA to do just that.

Most significantly for employers, if passed the bill will raise the maximum fine for Willful and Repeat violations from $136,532 to $700,000.

The maximum fines for failure-to-abate would increase from $13,653 to $70,000.

Considering the staggering increase in the potential fines and the likelihood of increased inspections if the bill passes, it is more important than ever that employers ensure that their workplace safety policies, procedures, and training activities are up to date and current. It is also critical that employers have a plan to respond when an OSHA investigator knocks on the door.

Mr. Stovall has assisted many employers throughout the United States in the creating of OSHA response plans in the defense of OSHA Citations. Do not hesitate to call on him should you need assistance.

OSHA is Tripling Down on Heat-related Hazards

By Jerry L. "Jay" Stovall

Today the Occupational Safety and Health Administration issued a Press Release announcing OSHA’s intention to take aggressive action to “combat the hazards associated with extreme heat exposure…” Given our climate, these actions will necessarily impact a great many of us.

OSHA is going to take a multi-prong approach to this issue.

First, on September 1, 2021, OSHA implemented an Enforcement Initiative regarding heat-related illness and injuries. Under the Initiative, OSHA prioritized heat-related inspections on days that the temperature exceeds 80 degrees. The Initiative focuses primarily on General Industry, Construction, Agriculture, and Maritime.

Second, in October of this year, OSHA will issue an Advance Notice of Proposed Rulemaking on heat-related illnesses and injuries. This is the first step in developing a Standard on heat-related hazards. This means that OSHA may issue a new, detailed heat-hazard Standard sometime next year.

Third, in 2022 OSHA will announce a new National Emphasis Program on heat-hazards. This will target certain industries and allocate OSHA staff on heat-related inspections. (This will be in addition to the existing Regional Emphasis Program for Heat Illnesses in effect covering Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.)

Employer takeaway. Employers will need to keep their eyes out for a new heat-related Standard in 2022, while at the same time ensuring that their current heat-related safety policies and practices are up to speed and well documented. The first thing OSHA is going to ask for in an audit or inspection is the written heat illness prevention program. If you don’t have one, now is the time to create it.