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OSHA Issues Emergency Vaccine Regulation Affecting Large Employers

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employees of large employers either to get vaccinated or to test negative on a weekly basis. The ETS also requires large employers to provide employees with paid leave to get vaccinated and requires all unvaccinated employees to wear a mask at work.

Where can employers find a copy of the ETS?

A copy of OSHA’s ETS can be found here. The version published in the Federal Register will be available by Nov. 5, 2021.

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EEOC Clarifies Guidance on Religious Accommodations to Vaccine Mandates

On Oct. 25, 2021 the Equal Employment Opportunity Commission (EEOC) issued new guidance for resolving religious objections to COVID-19 workplace vaccination mandates. This guidance comes at a time when many employees are submitting requests for religious accommodations to workplace vaccine mandates.

The EEOC issued the new guidance (at Section L) while employers await an Emergency Temporary Standard (ETS) from the Occupational Safety and Health Administration that will direct large employers to require their employees to be vaccinated or regularly tested. When the ETS takes effect, employers will likely face a significant increase in religious accommodation requests.

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Should Employers Add Booster Shots to Their COVID-19 Vaccine Policies?

So far, employers have focused mainly on the initial vaccination, but "Should Employers Add Booster Shots to Their COVID-19 Vaccine Policies?”

Some geographic areas — and some industries — are still struggling to reach a critical mass of people willing to get the shot in the first place. Although skepticism abounds about whether the definition of 'fully vaccinated' will evolve to require boosters, right now boosters are optional.

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Mandatory Vaccination Coverage Expanded in Practice for All Federal Contractors and Subcontractors

As McGuireWoods noted in a Sept. 10 alertSept. 20 FAQs and Sept. 27, 2021 update, part of the Biden administration’s COVID-19 vaccination mandates applies only to federal contractors and subcontractors. And, even then, the Sept. 9, 2021 Executive Order 14042 (EO) and Sept. 24, 2021 Safer Federal Workforce Task Force Guidance appear to limit coverage to only a subset of such employers.

However, after publication of the Task Force Guidance, the Federal Acquisition Regulatory (FAR) Council and federal agencies have taken an aggressive position in rolling out the vaccination mandate — “encouraging” contracting officers to include the EO clause in all federal contracts beginning Oct. 15, 2021. This includes contracts for goods and contracts below the FAR simplified acquisition threshold.

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Employee COVID-19 Vaccination Guidance Issued for Federal Contractors and Subcontractors

Update (Oct. 18, 2021): The Federal Acquisition Regulatory (FAR) Council and federal agencies have taken an aggressive position in rolling out the federal contractor and subcontractor vaccination mandate — “encouraging” contracting officers to include the Executive Order clause in all federal contracts beginning Oct. 15, 2021 – including contracts for goods and other exceptions otherwise excluded by the executive order. For more details, please see our alert.

As noted in a Sept. 10, 2021 alert and in Sept. 20, 2021 FAQs, President Biden’s “Path Out of the Pandemic” employee COVID-19 vaccination mandates have three main components — one of which applies only to certain federal contractors and subcontractors based on Executive Order 14042 (EO) issued on Sept. 9, 2021.

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Build Back Better Act

House Ways and Means Committee Tax Proposals – Key Issues for Corporations, Passthrough Entities, and Individuals

On Sept. 15, 2021, the Ways and Means Committee of the U.S. House of Representatives approved a proposed tax legislative package (the “W&M proposal”) to the Build Back Better Act reconciliation bill (the “Act”), which proposal contains a number of substantial proposed tax law changes for corporations, passthrough entities, and individuals. This alert summarizes some of the key elements of the W&M proposal.

The release of the W&M proposal represents one step in the legislative process. The proposed changes to the tax law are subject to further modification as the draft legislation progresses through Congress. It is unclear at this time what tax changes will be enacted in final form by Congress, and ultimately be signed into law.

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Questions, Answers and Predictions About New Federal COVID-19 Vaccination Mandates

Q:  Under the proposed “vaccinate or test” requirement for companies with 100 or more employees, can employers adopt a stricter approach and mandate COVID-19 vaccinations without a testing option?

A:  Yes, the federal OSHA Emergency Temporary Rule (ETS) will be the legal floor. Private employers can always implement stricter COVID-19 protocols (i.e., vaccination alone) than what is minimally required, subject to applicable state law limits. However, testing as an alternative to vaccination could be a potential disability or religious accommodation.

Q:  Won’t vaccination exceptions for disability and religious accommodations create a massive loophole that essentially swallows the rule?

A:  There is that potential, depending on how employers administer the accommodation process, develop forms and address requests. However, under the Americans With Disabilities Act (ADA) and Title VII, there are legal limits, such that a proposed accommodation can be denied when it would impose an “undue hardship” on the employer or a significant risk of substantial harm to the health or safety of the employee, the employee’s co-workers, customers or others that cannot be eliminated or sufficiently reduced by reasonable accommodation. Further, the undue hardship test under Title VII for religion is different (and lesser) than the test under the ADA — i.e., triggered when an employer is forced to undertake “more than a de minimis cost.” This can potentially include economic costs (such as lost business or hiring additional employees) and non-economic costs (such as compromising the integrity of a seniority system, increasing safety risks, or increasing the risk of legal liability from employees, customers and others).

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American Rescue Plan Implementation

State Actions on Coronavirus Relief Funds
American Rescue Plan Overview

On March 10, 2021, Congress passed President Biden’s stimulus and COVID-19 relief package, the American Rescue Plan (ARP). The $1.9 trillion package provides additional funding for vaccination efforts, COVID-19 testing, state and local governments, stimulus checks, unemployment assistance, rental assistance, education, child care, and small businesses.

On May 10, 2021 the U.S. Department of the Treasury announced the launch of the Coronavirus State and Local Fiscal Recovery Funds, established by the American Rescue Plan Act of 2021, to provide $350 billion in emergency funding for eligible state, local, territorial, and Tribal governments. Treasury also released details on how these funds can be used to respond to acute pandemic response needs, fill revenue shortfalls among these governments, and support the communities and populations hardest-hit by the COVID-19 crisis. With the launch of the Coronavirus State and Local Fiscal Recovery Funds, eligible jurisdictions will be able to access this funding to address these needs.

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FAQs About the New COVID-19 Vaccine Executive Actions


As noted in a Sept. 10, 2021, alert, President Biden’s broad six-part strategy to combat the COVID-19 pandemic is raising many questions for employers. While employers await the much-anticipated regulations, a few answers to questions regarding the proposed federal vaccine requirements already are available.

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Biden Administration Announces COVID-19 Vaccine and Testing Mandates for Most Employers

Update (Oct. 18, 2021): The Federal Acquisition Regulatory (FAR) Council and federal agencies have taken an aggressive position in rolling out the federal contractor and subcontractor vaccination mandate — “encouraging” contracting officers to include the Executive Order clause in all federal contracts beginning Oct. 15, 2021 – including contracts for goods and other exceptions otherwise excluded by the executive order. For more details, please see our alert.

Update (Sept. 27, 2021): On Sept. 24, the Safer Federal Workforce Task Force released new guidance on how that EO will operationally work and the locations and employees covered by it. See our Sept. 27 alert for more information.

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White House Announces Steps to Increase Affordable Housing Supply

On Sept. 1, 2021, the White House announced a set of policies designed to increase the supply of affordable housing, with a goal of producing nearly 100,000 additional affordable homes over the next three years. The policies primarily focus on housing finance tools controlled at the federal level and areas where the federal government can leverage and influence policy at state and local levels.

Affordable Rental Housing

To boost the supply of affordable rental units, the federal government is relaunching the Federal Financing Bank and HUD Risk Sharing program, making changes to the Low-Income Housing Tax Credit (LIHTC) program, and increasing funding under the Capital Magnet Fund grant program. Within the LIHTC program, the Federal Housing Finance Agency (FHFA) increased Fannie Mae and Freddie Mac’s LIHTC cap to $1.7 billion, which is a $700 million increase.

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US Senate Passes Infrastructure Bill

On Aug. 10, 2021, the Senate passed the infrastructure bill, called the Infrastructure Investment and Jobs Act (IIJA) in a 69-30 vote. The bill will now wait for consideration in the House of Representatives. The total cost of the bill is $1.2 trillion with $548 billion in new spending. The bill reauthorizes the traditional surface transportation programs for five years, and provides additional funding for energy, water and broadband. 

The IIJA includes the committee-passed surface transportation reauthorization bills from the Commerce and Environment and Public Works Committees, the Drinking Water and Wastewater Infrastructure Act passed by the Senate, and the Energy Infrastructure Act approved by the Energy and Natural Resources Committee.  

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US Senate Advances Bipartisan Infrastructure Deal

On Wednesday, July 28, a bipartisan group of Senators, along with the White House, announced an infrastructure agreement. That evening, the Senate then voted to invoke cloture on the motion to proceed with consideration of the agreement by a vote of 67-32.

Every Senate Democrat voted in favor of the motion, in addition to 17 Republicans. The Republicans voting yes were:

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President Biden Announces Findings of Critical Supply Chain Assessment

On June 8, 2021, the White House released the findings of a 100-day assessment of critical supply chains, undertaken pursuant to President Biden’s February 2021 executive order addressing supply chain vulnerabilities. The 100-day assessment report identifies actions needed in both the immediate and long term to bolster domestic manufacturing of critical goods, reduce dependence on China and other foreign nations for supply chain needs, create jobs and address unfair trade practices.

President Biden issued Executive Order (EO) 14017, “America’s Supply Chains,” on Feb. 24, 2021, directing federal agencies to assess vulnerabilities in critical supply chains, and provide recommendations on strengthening supply-chain processes and infrastructure throughout the United States. EO 14017 required a 100-day assessment focused on supply chains in four key industries: semiconductor manufacturing, critical minerals, active pharmaceutical ingredients and large-capacity batteries. The 100-day assessment report details structural weaknesses in the supply chains of each of the four industries under review, attributable to a combination of factors related to offshore production and manufacturing.

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