Tag: Rule

  • Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR

    Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR

    by CUPA-HR | January 10, 2023

    On January 4, 2023, the Biden administration released the anticipated Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with a detailed glimpse into the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. Agendas are generally released in the fall and spring and set target dates for each agency and sub-agency’s regulatory actions for the coming year.

    After completing a thorough review of the items included in the Regulatory Agenda, CUPA-HR put together the following list of significant proposed actions for members.

    Department of Labor

    Wage and Hour Division — Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

    According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) is now planning to release a Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements in May 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    As a refresher, changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, the DOL issued a new final rule in September 2019 raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020 and remains in effect today.

    Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. Specifically, our concerns highlight the ongoing challenges of the COVID-19 pandemic and the continued reliance on hybrid and remote work, a historically tight labor market in the U.S. and the effects of inflation on the workforce.

    Wage and Hour Division — Employee or Independent Contractor Classification Under the Fair Labor Standards Act

    In May 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

    On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. The current test finalized by the Trump administration in 2021 has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:

    • the extent to which the work is integral to the employer’s business;
    • the worker’s opportunity for profit or loss depending on managerial skill;
    • the investments made by the worker and the employer;
    • the worker’s use of skill and initiative;
    • the permanency of the work relationship; and
    • the degree of control exercised or retained by the employer control.

    Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States 

    In September 2023, the DOL’s Employment and Training Administration (ETA) plans to issue an NPRM to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.” The proposal will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    National Labor Relations Board

    Joint Employer

    In August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

    On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. The NPRM establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision and assignment and work rules. According to the NLRB’s press release, the Board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

    Department of Education

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance 

    In May 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to rollback and replace the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

    CUPA-HR filed comments in September 2022 in response to the NPRM. In our comments, we tried to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. The Department of Education received over 200,000 comments in response to the NPRM, which they must review prior to issuing a final rule to implement their changes.

    In addition to the Title IX rulemaking, the OCR also announced its intention to issue an NPRM to address Title IX protections as it relates to athletics programs at educational institutions. The Department of Education announced its intention to pursue a separate rulemaking to address transgender students participation in athletic programs at institutions of higher education and such protections afforded to them under Title IX after the topic was frequently discussed in the media and in Congress in 2022. According to the Regulatory Agenda, the NPRM was set to be released in December 2022, but it has not yet been released.

    Department of Homeland Security

    U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9) 

    According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in May 2023 that would finalize the agency’s proposed rule aiming to “revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    On August 18, 2022, the DHS published its NPRM on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. If finalized, the proposed rulemaking would create a framework under which the Secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax, or email rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the Secretary would be authorized to implement the alternative examination options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services, or a national emergency declared by the President.

    CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

    U.S. Citizenship and Immigration Services — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    In October 2023, the DHS’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system, and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    Department of Agriculture

    Agriculture Acquisition Regulation: Internal Policy and Procedural Updates and Technical Changes

    In May 2023, the Department of Agriculture (USDA) plans to re-propose an NPRM that was previously issued in February 2022 and included controversial provisions that would require federal contractors on projects procured by the agency to certify their compliance with dozens of federal and state labor laws and executive orders.

    In the February NPRM, the USDA provided only 32 days for stakeholder comment submissions on the proposal. CUPA-HR filed an extension request with the department asking for an additional 90 days to “evaluate the NPRM’s impact on [members’] research missions and collect the information needed in order to provide thoughtful and accurate input to the USDA,” as well as official comments that were pulled from 2012 comments CUPA-HR submitted with the Society for Human Resource Management (SHRM).

    While it is unclear whether the May NPRM will include the blacklisting language again, the abstract of the re-proposal states that “the new proposed rule would be responsive to the comments received on our February 2022 proposal.”



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  • DHS Proposes Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    DHS Proposes Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    by CUPA-HR | August 23, 2022

    On August 18, the Department of Homeland Security (DHS) published in the Federal Register its anticipated Notice of Proposed Rulemaking (NPRM) on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. Interested stakeholders can submit comments on the NPRM through October 17.

    Under current law, employers are required to physically examine an individual’s identity and employment authorization documents within three business days after an individual’s first day of employment. The proposed rulemaking, however, would create a framework under which the Secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax or email.

    As explained in the NPRM, the proposal does not directly allow employers or agents acting on the employer’s behalf to use such alternative examination options, but instead would create a framework under which the Secretary would be authorized to extend the flexibilities. The Secretary would be authorized to implement the alternative options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services, or a national emergency declared by the President.

    The DHS is issuing this rulemaking following the success of temporary changes to document verification procedures implemented at the onset of the COVID-19 pandemic. In March 2020, the DHS’s Immigration and Customs Enforcement deferred its physical examination requirements for Form I-9 and relaxed its enforcement. Employers were allowed to review documents through video, fax or email so long as they also retained copies of the documents. The policy proved successful and was extended several times, but is currently set to expire October 31, 2022. It may still be extended as the agency pursues this rulemaking.

    In December 2021, CUPA-HR submitted comments to the DHS in response to the agency’s Request for Public Input on remote document examination. In its comments, CUPA-HR reported the results of the survey it conducted of member institutions’ experiences with the agency’s Form I-9 flexibilities. CUPA-HR members reported positive experiences with the changes and said they did not run into challenges with implementation. Respondents strongly supported a permanent option for remote document examination and said the policy provides numerous benefits for higher education institutions, including providing more flexibility for remote work, reducing the time needed to complete document verification and reducing institutions’ paperwork burden. Respondents also criticized physical document examination as overly burdensome.

    CUPA-HR plans to submit comments on the NPRM and will likely ask members for their input in the coming weeks.



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  • Department of Education Releases Title IX Proposed Rule – CUPA-HR

    Department of Education Releases Title IX Proposed Rule – CUPA-HR

    by CUPA-HR | June 23, 2022

    On June 23, the Department of Education released the highly anticipated Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM proposes to replace the Trump administration’s 2020 Title IX rule and establishes safeguards for transgender students by proposing a ban on “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.” The proposal will be open for public comment for 60 days following publication in the Federal Register.

    In March 2021, President Biden issued an Executive Order (EO) titled, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” The EO directed the secretary of education to evaluate the Trump administration’s Title IX regulations and to “issue new guidance as needed on the implementation of the rule.”

    Of significance, the NPRM proposes to repeal the Trump administration’s requirement for live hearings for Title IX investigations. It also proposes to change the definition of sexual harassment back to “unwelcome sex-based conduct” that creates a hostile environment sufficiently severe or pervasive that it denies or limits a person’s ability to participate in a school’s education program or activity.

    CUPA-HR will be conducting a deeper analysis of the 700-page proposal in the days and weeks to come and will be partnering with other higher education associations to ensure the department receives meaningful feedback on its proposal.

    For additional information on the proposed rule, the department has provided a summary of the major provisions and a fact sheet.



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  • DOL to Host Regional Listening Sessions for Proposed Overtime Rule Regulations – CUPA-HR

    DOL to Host Regional Listening Sessions for Proposed Overtime Rule Regulations – CUPA-HR

    by CUPA-HR | April 7, 2022

    In the Biden administration’s fall 2021 regulatory agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) announced that it planned to release in April 2022 a Notice of Proposed Rulemaking (NPRM) changing criteria for the “executive, administrative and professional” exemptions from the overtime pay requirements under the Fair Labor Standards Act (FLSA). In May and June, the DOL will host five regional listening sessions allowing stakeholders to discuss the anticipated proposed rule aimed at changing the exemptions to the federal overtime pay requirements.

    With listening sessions extending into May, the WHD will not be able to meet the April target date, but we do expect the agency will release a proposed rule in 2022 with compliance likely required in 2023. While the DOL has not shared how it may change the exemptions, it is holding listening sessions to elicit stakeholder input as to whether changes are appropriate and what changes would be appropriate at this time.

    Background

    According to the regulatory agenda, one of the goals of the NPRM would be “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].” Changes to the overtime exemption minimum salary threshold have been proposed recently under both the Obama and Trump administrations. In 2016, President Obama’s DOL issued a final rule to increase the salary threshold from $23,660 to $47,476 per year and impose automatic updates to the threshold every three years, but the rule was subsequently struck down by federal court before taking effect in 2017. In 2019, the Trump administration issued a new final rule that raised the minimum salary threshold from $23,660 to $35,568 annually, which went into effect on January 1, 2020. The $35,568 threshold remains in effect today.

    On March 29, in anticipation of the upcoming Biden administration rule, the DOL held a virtual higher education-specific listening session for D.C.-based higher education associations, including CUPA-HR. The listening session was scheduled after CUPA-HR and 14 other higher education associations submitted a request that the DOL hold such meetings prior to releasing the anticipated NPRM. CUPA-HR and several other higher education associations joined the session to discuss potential concerns institutions may have with an increase to the minimum salary threshold at this time.

    Regional Sessions

    In addition to the D.C. meeting held in March, the DOL is planning to host five additional regional listening sessions for employers. The sessions include the following:

    • Northeast Employers: May 13 at 3:30 p.m. EDT
    • Southeast Employers: May 17 at 2:00 p.m. EDT
    • Midwest Employers: May 20 at 3:30 p.m. EDT
    • Southwest Employers: May 27 at 3:00 p.m. EDT
    • West Employers: June 3 at 3:30 p.m. EDT

    If your institution is interested in participating in any of the regional meetings, please reach out to CUPA-HR’s Chief Government Relation Officer Josh Ulman at [email protected]. Additional information about the D.C. listening session and CUPA-HR’s talking points will be provided upon inquiry.



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  • CUPA-HR Submits Letter to DOL Requesting Stakeholder Meetings Prior to Anticipated Overtime Proposed Rule – CUPA-HR

    CUPA-HR Submits Letter to DOL Requesting Stakeholder Meetings Prior to Anticipated Overtime Proposed Rule – CUPA-HR

    by CUPA-HR | February 8, 2022

    On February 8, CUPA-HR and 14 higher education organizations sent a letter to the Department of Labor (DOL) Wage and Hour Division (WHD)’s Acting Administrator Jessica Looman requesting that the agency engage in stakeholder meetings with the higher education community during the initial stages of the rulemaking process for the anticipated overtime rule.

    In December 2021, the DOL announced in its Fall Regulatory Agenda that it plans to issue a Notice of Proposed Rulemaking (NPRM) this April to update the salary level to qualify for the executive, administrative and professional employee exemptions (collectively known as “white collar” or “EAP” exemptions) to the Fair Labor Standard Act’s overtime pay requirements. In 2015, the Obama administration’s DOL proposed an increase to the threshold of over 100 percent from $23,660 to $50,440 per year. After the comment period ended, the DOL issued a final rule in 2016 that would have increased the level to $47,476. The rule was stayed and then overturned by a federal court in 2017; however the Trump administration DOL reevaluated the rule in light of the litigation and issued a new rule in 2019 that increased the salary threshold starting January 1, 2020, to $35,568 per year.

    While the DOL has not publicly stated the salary threshold increase it is considering for the April NPRM, members of Congress and advocates have recommended that the Biden administration DOL increase the threshold by over 100 percent to at least to $82,732 by 2026.

    Given the likelihood that the DOL is feeling significant pressure from certain stakeholders to pursue a robust increase, CUPA-HR drafted the letter highlighting higher education’s significant involvement with DOL’s prior rulemakings in 2016 and 2019 and the particular concerns institutions harbored with the 100 percent increase to the salary threshold in 2016. It further explains that due to the pandemic-related workforce changes across colleges and universities, the DOL must hold stakeholder meetings with our community before issuing the anticipated overtime NPRM — as was done in 2004, 2014 to 2015, and 2019.

    CUPA-HR will keep members apprised of any actions taken by the DOL as it moves forward with the overtime rule.



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  • DOL Issues Final Rule to Increase Federal Contractor Minimum Wage – CUPA-HR

    DOL Issues Final Rule to Increase Federal Contractor Minimum Wage – CUPA-HR

    by CUPA-HR | December 13, 2021

    On November 24, the Department of Labor (DOL)’s Wage and Hour Division (WHD) issued a final rule implementing President Biden’s Executive Order 14026 (EO), “Increasing the Minimum Wage for Federal Contractors.” The rule increases the minimum wage for federal government contractors for workers who work on or in connection with a covered federal contract to $15 per hour beginning January 30, 2022, and requires the secretary of labor to annually review and determine the minimum wage amount beginning January 1, 2023.

    As stated above, the final rule establishes standards and procedures for implementing and enforcing the minimum wage protections of Executive Order 14026. Starting January 30, 2022, all agencies will need to include a $15 minimum wage in new contracts, new solicitations, extensions or renewals of an existing contract, and exercises of an option on an existing contract. Under the EO and final rule, contracts with solicitations issued before January 30, 2022, and entered into, on or between January 30 and March 30, 2022 will be exempt from the wage. If such a contract is subsequently extended or renewed or an option is exercised under the contract, the $15 minimum wage will apply.

    Covered Contracts

    According to the EO and as finalized in the rule, the $15 minimum wage requirement only applies to the following contracts:

    • Procurement contracts for services or construction;
    • Contracts for services covered by the Service Contract Act (SCA);
    • Contracts for concessions; and
    • Contracts “entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.”

    The new minimum wage clause will NOT need to be included in:

    • Federal grants;
    • Contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act;
    • Procurement contracts for construction that are excluded from coverage of the Davis-Bacon Act (DBA);
    • Contracts for services that are exempt from coverage under the SCA; and
    • Contracts for the manufacturing of materials, supplies, articles or equipment to the Federal Government.

    Covered Workers

    The WHD defines a covered worker in the final rule as “any person engaged in performing work on or in connection with a contract covered by the EO, and whose wages under such contract are governed by the [Fair Labor Standards Act (FLSA)], the SCA or the DBA, regardless of the contractual relationship alleged to exist between the individual and the employer.” A worker who performs “on” a covered contract is defined as “any worker who directly performs the specific services called for by the contract’s terms,” and a worker who performs “in connection with” a covered contract is defined as “any worker who performs work activities that, although are not the specific services called for by the contract’s terms, are necessary to the performance of those specific services.”

    One exemption to the rule’s minimum wage requirement is provided for FLSA-covered workers performing work “in connection with” covered contracts for less than 20 percent of their working hours in a given workweek.

    The final rule also clarifies that certain employees who are exempt from the minimum wage protections under the FLSA are also not entitled to the $15 minimum wage protection of the EO and final rule. In an FAQ page on the EO and final rule, the WHD provides “learners, apprentices, messengers and full-time students employed under certificates pursuant to FLSA sections 14(a) and (b)” as examples of individuals who are excluded from the EO’s minimum wage requirements.

    Additional Considerations

    As mentioned above, the secretary of labor will be granted authority to annually review and increase the minimum wage beginning January 1, 2023. The minimum wage will be increased by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers to address inflation.

    Additionally, the EO and final rule change compensation for tipped employees working on or in connection with a covered contract. Beginning January 30, 2022, such tipped employees must be paid a wage of at least $10.50 per hour. By January 1, 2024, the tip credit must be eliminated for such employees, and they must earn the same minimum hourly rate that other covered employees are entitled to.

    CUPA-HR will keep members apprised of any updates and resources to aid institutions as the new minimum wage final rule becomes effective.



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  • OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released – CUPA-HR

    OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released – CUPA-HR

    by CUPA-HR | November 4, 2021

    On November 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) issued their highly anticipated Emergency Temporary Standard (ETS) and interim final rule (IFR) setting vaccination requirements for employers with 100 or more employees and healthcare workers, respectively. Under the new policies, covered employers with 100 or more employees, healthcare workers at facilities participating in Medicare or Medicaid, AND federal contractors requiring vaccinations under Executive Order 14042 (EO) will be required to be fully vaccinated — either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson — by January 4, 2022.

    A Fact Sheet announcing the new vaccinations rules provides the following information on the OSHA ETS, CMS IFR and federal contractor vaccination requirements:

    OSHA Emergency Temporary Standard

    In lieu of full vaccination, the OSHA ETS for employers with 100 or more employees (covered employers) also offers the option for unvaccinated employees to produce a verified negative COVID-19 test to employers on at least a weekly basis. OSHA does clarify, however, that the ETS does NOT require employers to provide or pay for tests, but notes that employers may be required to pay for testing due to other laws or collective bargaining agreements.

    The ETS also establishes policies that require covered employers to provide paid time off (PTO) for their employees to get vaccinated and, if needed, sick leave to recover from side effects that keep them from working. Additionally, all covered employers will be required to ensure that unvaccinated employees wear a face mask in the workplace. While the testing and vaccination requirements will begin after January 4, the ETS states that covered employers must be in compliance with the PTO for vaccination and masking for unvaccinated workers requirements by December 5, 2021.

    Importantly, OSHA clarifies in the ETS that the rule will not apply to workplaces already covered by the CMS IFR, as well as the federal contractor vaccination requirement set forth by President Biden’s EO and the Safer Federal Workforce Task Force’s vaccination guidance.

    Healthcare Interim Final Rule

    According to CMS, the IFR requiring full vaccination of healthcare employees applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services for the facility under contract or other arrangements. Among the facility types covered by the IFR are hospitals, ambulatory surgery centers, dialysis facilities, home health agencies and long-term care facilities.

    Federal Contractor Vaccination Executive Order

    In an effort to streamline implementation of the vaccination requirements, the Biden administration is also announcing that the deadline for previously issued federal contractor vaccination requirements will be extended to January 4, 2022, setting one deadline across the three different vaccination policies. The vaccine requirement for federal contractor compliance was previously set for December 8, 2021.

    Additionally, as mentioned above, federal contractor employers who may otherwise fall under the OSHA ETS covered employer definition will not be required to follow the rules established under the ETS and must continue compliance with the vaccination guidance and requirements set forth by the EO and Safer Federal Workforce Task Force for federal contractors.

    State and Local Preemption

    Early reports of the rules also state that both the OSHA ETS and CMS IFR make it clear that their requirements “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.” More information is likely to follow.

    Additional information is likely to arise as we learn more from the actual text of the ETS and IFR. CUPA-HR will keep members apprised of all new information.



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