In latest edition of The Wright Toolbox:

• Federal Government Contractor Mandatory Vaccine Update – read now
• Maryland Laws That Took Effect October 1, 2021 – read now

Federal Government Contractor Mandatory Vaccine Update

As previously reported, President Biden’s Executive Order requiring vaccinations for government contractors was awaiting implementation guidance which has now been released.  The Guidance mandates COVID-19 vaccinations along with masking and social distancing measures. The Guidance sets baseline requirements which are expected to be updated over time and implemented through a contract clause.

As noted in the Executive Order, the Guidance extends to prime contractors and subcontractors at any tier.  Although it currently exempts contracts below the simplified threshold, grants and “manufacturers of products,” it “strongly encourage[s]” agencies to include the new contract clause in agreements that otherwise would be exempt once the clause is available.  The Guidance is unclear whether it would apply to indirect employees, but it applies to full and part-time employee working on or “in connection with” a covered agreement and at contractor workplace locations where covered and noncovered employees are “likely to be present.”  There is a narrow exception which exempts individuals working at home from the guidance’s masking and physical distancing requirements, as the home is not a “covered contractor workplace.” However, an “individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract.”

Covered employees must be fully vaccinated by December 8, 2021, or by the first day of the period of performance of a newly awarded agreement, exercised option period, or extension or renewal that includes the clause and is issued on or after December 8, 2021.  “Fully vaccinated” is defined as two weeks after the second dose of a two-dose vaccine or after a single-dose vaccine. This means that the true date employers should target for having their employees to have received all of their doses of the vaccine is the day before Thanksgiving, Wednesday, Nov. 24, 2021.  There is no option for contractor employees to submit to weekly testing as an alternative to vaccination.  Employees who have previously had COVID-19 are also not exempt from the vaccine mandate. As always, contractors may need to provide accommodations to employees who are legally entitled to them for medical purposes or sincerely held religious beliefs. The Guidance requires employers to “review” proof of vaccination through proper documentation.

In addition to vaccine requirements, the mandate supplements the rules already in place for any contract work being performed at federal work sites and requires contractors to ensure that in the workplace, all employees and visitors follow CDC guidance for appropriate masking and social distancing.

The Guidance also requires that one individual at each contractor must be designated to coordinate implementation of and compliance with the mandate. This person must communicate the protocols and related policies to employees and visitors and must ensure that covered contractor employees show or provide vaccination documentation.

It remains unclear what contractors may expect in terms of enforcement or penalties once the new clause is included in an agreement. It is possible that agencies may consider failure to comply as justification for a termination or poor performance evaluations.

Takeaways—

• • Start to create a plan now for getting the message out to employees that they will need to be vaccinated and developing clear policies and consequences for employee’s failure to comply;
  • Develop a logistical plan for collecting proof of vaccination, processing any medical and religious exemptions, and identifying who will serve as the coordinator;
  • Evaluate any cost, timing, and method of performance that the guidance will have in the preparation of any proposals for new contracts or seeking equitable adjustments to contracts.

As always, we are here to help if you need assistance. Contact our Employment and Labor Law Group or Government Contracts Group with any questions.

Maryland Laws That Took Effect October 1, 2021 

On October 1, 2021, several new laws became effective relating to the workplace, home building, and beyond.

Discriminatory Complaint Filing Period (HB 290 / SB 455)
Employees looking to file a complaint alleging unlawful employment practices have within 300 days after the incident occurs to do so, an extension of the previously held 6-month period. This excludes harassment complaints, which have their own defined filing window. This change standardizes the timeline across state and federal levels, meaning that both the Maryland Commission on Civil Rights and the Equal Employment Opportunity Commission abide by the 300-day protocol.

Bereavement Leave (HB 56 / SB 473)
The Maryland Flexible Leave Act now requires employers to permit employees to take any accrued paid leave, such as vacation, PTO, compensatory or sick time, as bereavement leave in the case of death of an immediate family member. Immediate family member is defined as a parent, spouse or child (a child being biological, adopted, foster, step child or legal ward), including adult children. The change applies to employers with more than 15 employees. Employers are not required to increase leave banks, but are not permitted to take adverse action against employees who opt to use their earned leave in accordance with bereavement purposes.

Prevailing Wage Law Changes (HB 37 / SB 35)
Public works contracts executed on or after October 1, 2021 will be subject to different Prevailing Wage Law limitations. The prevailing wage will now be applicable to state construction projects with contracts of $250,000 and at least 25% of the funding is state money. This lowers the thresholds from their current standings of $500,000 contracts with 50% state money contributions.

Amendments to the Minority Business Enterprise Program (SB 697)
Under the Minority Business Enterprise (MBE) Program, businesses can now participate in a procurement contract as both a Women-Owned Business and business owned by a member of an ethnic or racial group, should it qualify for both categories.

Will Custodianship and Disposal (HB 1266)
A custodian of a will must, unless instructed by the testator, maintain custody of the will and provide the safekeeping of the document and its contents. The custodian must deliver the will to the testator, a court-appointed guardian, or a testator-authorized attorney on their demand. The law also elaborates on the circumstances for which an attorney who has custody of a will may dispose of it, and releases them from liability of potential damages suffered by the testator due to disposal if done so in accordance of the law.

At-Home Electric Car Charging Stations (HB 784)
Buyers of newly built homes are about to have even more options when it comes to customization. Residential builders, starting October 1st, must offer single-family home and townhome buyers the option of including a level 2 (up to 208 volt) electric car charging station, or the wiring to allow the later installation of a charging station. This applies to new builds where each unit has at least one driveway, carport or garage where the station can be placed.