On Friday, November 12, 2021, the United States Court of Appeals for the Fifth Circuit continued its stay on the implementation of the OSHA Emergency Temporary Standard (ETS) on vaccine mandates and testing pending a full review of the request for a permanent injunction. It also directed OSHA to “take no steps to implement or enforce the mandate until further court order.” MCAA will continue to provide updates as the situation evolves.
As MCAA resumed in-person programming this fall, industry leaders from across the nation gathered at Babson College for this year’s Advanced Leadership Institute. This cohort of executives from both the construction and service sectors studied strategic decision-making, managing organizational change, conflict resolution, and a whole lot more. After two intensive weeks of leadership education, Friday marked the graduation of the 21st Advanced Leadership Institute class.
In addition to their 70 hours of classroom instruction, participants conducted independent team research projects in which they tackled current issues facing mechanical contractors and developed best practices for approaching these challenges. And while they were at it, they built a network of peers and made new friendships that we hope will last for a very long time.
As they do every year, participants of the MCAA’s Advanced Leadership Institute wowed their professors with their enthusiasm and engagement. It is this commitment on the part of the participants that makes the ALI experience what it is meant to be – the premiere forum for growth and development of leaders in the mechanical industry.
Graduates of the Advanced Leadership Institute demonstrate time and again that people are what drive our industry to continued and future success. We congratulate the 2021 ALI graduating class, and are proud to continue to facilitate the investment that our member companies make in their leadership.
Admission to MCAA’s flagship educational program is highly competitive, and space is limited. The application for ALI Course 22 will be released in February of 2022. More information.
Each week, MCAA will highlight one or more of the educational resources that are free to MCAA members as a benefit of membership. This week, we focus on MCAA’s 2021 3D Scanning Technology Research Report. The report assesses various laser, non-laser scanning and photogrammetric hardware and software tools used by mechanical contractors. MCAA members stand to benefit from these and other rapidly evolving technologies that can expedite work, increase precision and prevent mistakes.
In addition to scanning, the MCAA’s Construction Technology Research Series explores tracking, layout, design and fabrication technologies using BIM and other tools.
MCAA’s Innovative Technologies Initiative offers a wealth of resources and information for those interested in exploring new technologies. Visit the initiative’s web page to explore them all.
Contact MCAA’s Sean McGuire.
MCAA is ‘ALL IN’ for our 19th Annual Safety Directors’ Conference at Disney World in Orlando, Florida, January 18-20, 2022. This conference brings together hundreds of occupational safety and health professionals, MCAA local affiliate executives, United Association safety instructors, principals, owners, and others who have safety and health responsibility.
The conference includes:
20 Knowledgable Speakers
Several Hands-On Workshops
Team Building at EPCOT
PLUS The 2021 Safety Professional of the Year will be announced
We can’t wait to go ALL IN in 2022!
On November 6, 2021, the attorneys general in ten states (Alaska, Arizona, Arkansas, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming, Iowa) sued the Biden administration over the Occupational Safety & Health Administration (OSHA) Emergency Temporary Standard (ETS) on COVID-19 that would have been effective immediately. As anticipated, the ETS has been stayed by the 5th Circuit Court of Appeals. MCAA members won’t have to worry about enforcement until the courts hear, and rule on, the lawsuits.
Innovation comes from hard work, grit and the successes and failures that go along with it. If you are fortunate, you can improve your processes from the trials and errors of your peers. The MEP Innovation Conference, powered by Trimble, has developed into the most in-depth conference on construction technology and innovation.
The conference is now a partnership with MCAA, NECA, and SMACNA and will bring in the best innovators from across the MEP spectrum to Tampa, Florida, January 24-26 2022. With the inclusion of over 65 MEP contractors as presenters, each session will present a case study from your peers on how they integrated the latest tools, technology, hardware, and software.
Registration is exclusive to MCAA/MSCA, NECA, and SMACNA members as well as their union affiliated partners.
Registration is open!
COVID restrictions have limited the capacity of this event and it will sell out fast.
The Safer Federal Workforce (SFW) Task Force issued more detailed compliance guidance for direct Federal prime contractors and subcontractors performing on direct Federal contracts subject to the COVID-19 employee vaccination mandates under the Biden Administration’s Executive Order 14042. Below is a MCAA summary of the “new” Frequently Asked Question guidance issued on November 1, 2021. They are marked “New” on the SFW Task Force website linked below.
Q: What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?
Answer Summary – If the recalcitrant worker has not requested an accommodation, and no such request is pending, then the guidance says the employer should resort to the terms of their employee handbooks or applicable bargaining agreements for the appropriate disciplinary steps. It refers to the progressive discipline procedures used for Federal personnel for example. During the pendency of the applicable process, the guidance suggests, the worker’s continued presence on the covered workplace must be in compliance with safety protocols for unvaccinated workers.
Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
Answer Summary – The answer says the agency should work with contractors who are trying in good faith to meet compliance challenges. On the other hand, the answer suggests, if the contractor is not taking steps to comply, the agency should consider significant actions, such as contract termination.
Q: If a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, are the employees of that affiliate considered contractor employees subject to COVID-19 workplace safety protocols for Federal contractors established through the Task Force Guidance?
Answer Summary – The answer says that if the two entities are in a joint control relation with each other or a third party, then employees of the non-covered affiliate are considered contractor employees when working at a covered worksite.
Q: If the workplace where a covered contractors employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor that does not otherwise qualify as a covered contractor under Task Force guidance, is the workplace considered a covered contractor workplace?
Answer Summary – Again, assuming a control relationship among the entities, if an employee of a covered contractor is likely to be present during the term of the covered contract at the 3rd party site, then that site is considered a covered contract workplace.
Q: If a covered contractor can access a covered contractor employee’s vaccination documentation, consistent with relevant privacy laws, does the covered contractor need to require the employee to show or provide documentation?
Answer Summary – No, the answer says, if the contractor can access the documentation directly through precious documentation responses, an employer vaccination program record, or a state immunization database.
Q: Do all requests for accommodation need to be resolved by the covered contractor by the time the covered contractor’s employees begin work on a covered contract or at a covered workplace?
Answer Summary – No, the answer says, if the accommodation requests are pending at that time, then the employer must require during the pendency of the resolution of the accommodation that the employee follow the workplace safety protocols for employees who are not fully vaccinated as per the SFW Guidance.
Q: When a covered contractor’s employees are not vaccinated because a covered contractor has provided the employee with an accommodation, what workplace safety protocols must the employee follow while in a Federal workplace?
Answer Summary – The affected agency will determine what protocols apply at that Federal worksite for unvaccinated workers. In general, the answer refers to masking, social distancing and testing procedures. However, the answer says it will amount to a fact-specific assessment by the agency with respect to the individual work circumstances, and notes that some circumstances may not be amenable to any such accommodation. In any case, the answer states contractors that have unvaccinated workers onsite at a covered Federal worksite must notify the agency contracting officer of which employees have received an accommodation in lieu of vaccination to facilitate that fact-based determination.
The Vaccination EO 14042 is under challenge by the State of Florida in a lawsuit for a temporary and permanent injunction filed in the US District Court for the Middle District of Florida last week. (State of Florida v. Bill Nelson, Administrator of NASA et al, 8:21-cv-2524, USDC MDFla., Tampa Division).
The complaint is a broad and vigorous challenge to the Administration’s use of the Federal Property and Administrative Services Act preamble authority to prescribe regulations to promote economy and efficiency of Federal contracts. The suit challenges that as a pretext to pursue otherwise inappropriate Federal public health policy. The suit also challenges the SFW Task Force and OMB exercise of regulatory authority over the ordinary course of procurement regulations vested in the Federal Acquisition Regulatory Council. The suit asserts the State of Florida’s direct interest in its various Federal contracts with NASA and GSA.
MCAA will report details of the litigation and the scope of any injunction when and if it is issued during the preliminary compliance period. Also, as to the various compliance procedures and judgments contained in the SFW Task Force Guidance, employers should be aware that generally, collective bargaining over the effects of a new Federal law or regulation is a mandatory subject of bargaining and is not subject to unilateral management implementation. Also, the summary answers above are meant for general communication. The full and complete text of the Guidance should be consulted for complete compliance analysis and planning. However, it also should be noted that some flexible rule of reason compliance standards are suggested in the new FAQs.
On November 4, 2021, the OSHA Emergency Temporary Standard applicable to all employers with 100 or more employees was released. This ETS is separate and apart from the EO 14042 vaccination mandate that applies to Federal prime contractors and subcontractors irrespective of employment numbers. The OSHA ETS expressly states that its requirements do not apply to workplaces covered by EO 14042 mandates, as follows:
Which employers are covered by the ETS?
Which workplaces are not covered by the ETS?
Also, on November 4th release of the OSHA ETA, the White House briefing notice extended the vaccination deadline under EO 14042 to be concurrent with the ETS deadline – January 4, 2022 – beyond the original EO 14042 vaccination deadline of December 8, 2021, as follows:
Streamlining Implementation and Setting One Deadline Across Different Vaccination Requirements: The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries. And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.
The Occupational Safety & Health Administration (OSHA) is issuing an Emergency Temporary Standard (ETS) on COVID-19.
Summary:
Additional details:
New Vaccination Requirement for Employers With 100 or More Employees: OSHA is issuing a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) to require employers with 100 or more employees to:
Additional information on the OSHA ETS website
MCAA is now accepting applications for the 2021 MCAA & MILWAUKEE TOOL Safety Professional of the Year award. The award is presented annually to a mechanical industry safety and health professional who has led his or her company to achieving an exceptionally high degree of safety excellence. The award winner for 2021 will be announced during MCAA’s 2022 Safety Directors’ Conference.
This year the winner will also be invited to the MCAA22 convention in San Diego, CA in March to receive the award on stage during the Awards of Excellence Breakfast. Airfare, lodging and registration will all be complimentary.
To nominate someone from your company, or from another company, to become the 2021 MCAA & MILWAUKEE TOOL Safety Professional of the Year, please complete the nomination form and e-mail it to MCAA’s Executive Director of Safety, Health, and Risk Management, Raffi Elchemmas, at raffi@mcaa.org by close of business on December 13, 2021.
MCAA is ‘ALL IN’ for our 19th annual Safety Directors’ Conference at Disney World in Orlando, Florida, January 18-20, 2022. This conference brings together hundreds of occupational safety and health professionals, MCAA local affiliate executives, United Association safety instructors, principals, owners, and others who have safety and health responsibility.
Additionally, this conference is open to our partners at NECA, TAUC, and SMACNA to attend and participate in. Over the three days you will hear from subject matter experts on safety, health, risk management, legal, and other topics. Also, Captain Richard Phillips will be presenting on the Hijacking of the Maersk Alabama. We can’t wait to go ALL IN in 2022!
Each week, MCAA will highlight one or more of the educational resources that are free to MCAA members as a benefit of membership. This week, we focus on MCAA’s Jobsite Safety Inspection Checklist. This checklist can be easily customized to help keep you organized and on track when you perform safety inspections.
Topics covered by the basic checklist include:
For additional safety-related resources, including training videos and materials, visit the Direct Links to MCAA & MSCA Safety Resources page.
Contact MCAA’s Raffi Elchemmas.
On October 25, 2021, the White House revoked the prior COVID-19 travel restrictions and announced that as of November 8, 2021, international travelers traveling to the U.S. by air will be permitted to enter the U.S. if they:
To be clear, the announcement is still a modified travel ban (“Global Suspension and Limitation on Entry of Certain Individuals Who Are Not Fully Vaccinated Against COVID-19”). A failure to meet the requirements or an exemption will result in an international traveler being denied entry into the United States. The new modified ban will remain in effect until terminated by the President.
Limited exemptions exist for some travelers. Of note:
Additionally, international travelers who are not fully vaccinated but permitted to enter the United States based on an exemption must agree to become fully vaccinated within 60 days of arrival or in a timeframe determined by the CDC and must provide proof of arrangements for becoming fully vaccinated after arrival, with some exceptions (sufficiently brief stay, among others).
This means that travelers from regions previously subject to U.S. COVID travel bans (Brazil, China, India, Iran, Ireland, South Africa, the United Kingdom, and the Schengen Area) will now be able to enter the United States directly from those countries, so long as they meet the requirements for being fully vaccinated and can present evidence of a negative COVID-19 test taken within three days of their entry. This also means that minors, depending on their age, and travelers from countries with low vaccine availability (less than 10% full vaccination rate), may now be exempt from the travel bans.
On October 15, 2021, the White House announced that as of November 8, 2021, the COVID-19 travel restrictions for international travelers coming into the United States will be lifted for those who:
The Centers for Disease Control and Prevention (CDC) has published a list of vaccines that will be accepted as evidence of being fully vaccinated. In short, the list of approved vaccines includes COVID-19 vaccines that have been approved or authorized for emergency use by the U.S. Food and Drug Administration:
The CDC has indicated that the guidance also applies to COVID-19 vaccines that have been listed for emergency use by the World Health Organization, such as AstraZeneca/Oxford. The CDC considers individuals to be fully vaccinated either two weeks after their second dose in a two-dose series, such as the Pfizer-BioNTech or Moderna vaccines, or two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine.
COVID-19 testing requirements will remain in place for all airline travelers entering the United States, including U.S. citizens and fully vaccinated people. Travelers are required to present evidence of a negative COVID-19 test result from no more than three days before their entry into the United States or documentation of recovery from COVID-19 in the past three months before being permitted to board a flight to the United States. (For more information, see International Travel During COVID-19.)
Last week, the Department of Homeland Security (DHS) announced that the department will ease restrictions on entry into the United States for fully vaccinated travelers from Canada and Mexico in early November. The United States had imposed entry restrictions on border crossings with Canada and Mexico to limit nonessential travel since the start of the pandemic. The restrictions have been extended monthly. According to DHS Secretary Alejandro N. Mayorkas, the new rules will be implemented in phases, starting on November 8, 2021, to allow fully vaccinated travelers to cross the border for nonessential reasons, while unvaccinated travelers will only be allowed to enter for essential reasons. By early January 2022, DHS will require evidence of being fully vaccinated for travelers to cross the border into the United States for any reason.
This most recent update means that travelers from regions previously subject to U.S. COVID travel bans (Brazil, China, India, Iran, Ireland, South Africa, the United Kingdom, and the Schengen Area) will now be able to enter the U.S. directly from those countries, so long as they meet the requirements for being fully vaccinated and have evidence of a negative COVID-19 test taken within three days of their entry into the United States. Land border crossings will now be easier for fully vaccinated travelers.
To MCAA members and JATC trustees considering attendance at events sponsored by the International Training Fund:
The Trustees of the UA International Training Fund (ITF) are committed to providing a safe and healthy workplace for all employees, instructors, and students participating in training events sponsored by the ITF.
To ensure safe and healthy training, the ITF has developed and adopted the following Preparedness Plan for in-person training that requires proof of COVID vaccination as a precondition of in-person participation.
The Plan applies to all in-person training events sponsored by the ITF in any location throughout the United States, including the upcoming Pipe Trades Training Conference, as well as Instructor Training Program, International Apprentice Contest and all Regional Training Classes.
Participants in any sponsored ITF event are responsible for complying with all aspects of the Plan.
Since 1996, the National Electrical Contractors Association (NECA) has presented their annual Industry Partner Award to individuals or organizations who are allied with the electrical construction industry. This year, NECA presented and recognized MCAA with the 2021 NECA Industry Partner Award at their annual Convention in Nashville.
In early 2021, MCAA, NECA and The Association of Union Constructors (TAUC) joined forces in a strategic alliance agreement to collaborate on issues impacting the construction and maintenance industry on a national and regional level. Through this alliance, the associations conduct joint meetings and share information of mutual interest relating to environmental health and safety, industrial relations, government affairs, innovation and technology. The associations work to develop products and practices to jointly benefit their respective memberships, increase membership awareness of industry issues and more.
Earlier this year, MCAA and NECA also partnered together to put on the 2021 MEP Innovation Conference, held virtually this past April. Registration is already open for the 2022 MEP Innovation Conference held jointly with MCAA, NECA and the Sheet Metal and Air Conditioning Contractors’ National Association (SMACNA) for January 24-26, 2022. This annual event will be held in-person, showcasing the industry-defining innovations being seen across the mechanical, electrical and plumbing contracting industries.
MCAA thanks NECA for this recognition and looks forward to many more years of joint collaboration in order to advance the unionized construction industry.
Below are two items relevant to the Biden Administration’s recent COVID vaccination mandates.
The General Services Administration and the Civilian Agency Acquisition Council (CAAC) issued a broad Federal Acquisition Regulation Class Deviation for direct Federal Government Civilian Agency Contracting Officers to implement President Biden’s Executive Order 14042.
The executive order is for direct Federal prime contracts and subcontracts above the Simplified Acquisition (SAT) dollar threshold of $250,000. The CAAC letter reiterates that Federal agencies are required to include the clause – Far Part 52.223-99 Ensuring Adequate COVID-19 Safety Protocols For Federal Contractors, to be included in:
The CAAC Letter also “strongly encourages” (but does not require) Federal agencies to include the COVID-19 vaccination requirement clause in contracts that will be awarded before November 14th on solicitations issued before October 15th and to include the requirements on prime and subcontracts under the $250,000 SAT.
The clause itself requires covered prime contractors and subcontractors to comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor and subcontractor workplace locations published by the Safer Federal Workforce Task Force Guidance at https:www.safefederal workforce.gov/contractors/.
The clause incorporates automatic adoption of yet-to-be issued requirements published by the Federal SFW Task Force.
The clause also clarified that the prime contract flow-down of the requirements applies only to subcontracts above the SAT of $250,000, with the caveat of the strong suggestion of broader application noted above.
It remains to be determined what, if any, further guidance may be issued by the full Federal Acquisition Regulatory Council.
Frequently Asked Questions About Affordable Care Act Implementation Part 50, Health Insurance Portability and Accountability Act and Coronavirus Aid, Relief and Economic Security Act Implementation. (CCIIO OG MMRD 1808, October 4, 2021) The Department of labor, Health and Human Services Administration and Department of Treasury revised and updated their FAQs on the ACA, HIPAA, and CARES Act implementation guidance to address health plan coverage of COVID vaccination expenses, the permissibility of allowing health plan wellness incentives for vaccinations, and the impermissibility of denying health plan eligibility and coverage to unvaccinated participants.
P-number is a numbering system used by ASME for grouping materials of similar weldability so that Code users don’t have to qualify every material that is being welded.
Together with the United Association (UA), MCAA is excited to bring you a new Clean Energy Heat Pump Performance Program. Heat pumps provide clean energy that can reduce or eliminate carbon dioxide from energy sources, thus operating more efficiently. Numerous state and federal financial incentives make heat pumps beneficial to both building owners and contractors. Signatory contractors and UA members are uniquely qualified to get trained and perform the work to reduce the carbon footprint for any state or city. Email Raffi Elchemmas (raffi@mcaa.org) or Robert Vilches (rvilches@uanet.org) to sign up.
Guardian has issued a Stop Use & Inspect Notice on a selection of Self-Retracting Lifelines (SRLs). This notice expands the scope of a previous notice (G-S006-A) and communicates immediate stop use and inspect information regarding a selection of Guardian SRLs with a cable lifeline and external energy absorber. In certain circumstances, the product’s energy absorber may not deploy and may cause serious bodily injury or death.
This notice only applies to the following SRL models:
The Safer Federal Workforce (SFW) Task Force, established by President Biden in Executive Order 13991 (January 20, 2021), issued COVID-19 Safety Guidance on September 24, 2021, in furtherance of the Federal prime contractor and subcontractor vaccination mandate issued by the President in Executive Order (EO) 14042 on September 9, 2021.
That EO also was accompanied by a Presidential order directing OSHA to create a similar (but not identical) vaccination and testing regime in an OSHA Emergency Temporary Standard that would cover all employers (irrespective of Federal contract status) with over 100 employees. And these parallel executive mandates operate in conjunction too with respect to COVID vaccination, testing and social distancing and masking rules that pertain to Federal agency personnel worksites, where covered private sector employers may be working.
Below is a digest of the SFW Task Force Guidance pertaining to direct Federal agency prime contractors and subcontractors (irrespective of employee numbers) at all lower tiers on covered Federal contracts.
The Task Force Guidance requires COVID-19 vaccination of all Federal prime contractor and subcontractor personnel working on or in relation to direct Federal contracts with Federal agencies above the current Federal Simplified Acquisition Threshold of $250,000. It applies to contracts entered into on solicitations issued on or after October 14, 2021, and to contract extensions or options exercised on existing covered contracts issued on or after that date.
Coincident with release of the SFW Task Force Guidance, the OMB exercised its ratification of the regulatory purpose called for in EO 14042.
In a release dated September 24, 2021, Office of Management and Budget (OMB) Deputy Director for Management, Jason Miller, declared: “Pursuant to the order [EO14042], the Director of the Office of Management and Budget has determined that compliance by Federal contractors and subcontractors with the COVID-19 workplace safety protocols detailed in the Task Force’s Guidance will promote economy and efficiency in Federal contracting. These safeguards will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal government.”
The Guidance is now subject to regulatory action by the Federal Acquisition Regulatory (FAR) Council, which has until October 8, 2021, to issue FAR contract language implementing the Guidance, which is to be included in FAR contract solicitation and contract extensions and option renewals beginning on October 14, 2021. The requirements will apply to new contracts awarded on or after November 14, 2021. Covered employers and employees will have until no later than December 8, 2021, to become “fully vaccinated.” After December 8th, all covered employees must be fully vaccinated on the first day of performance of a covered new contract, or extension or option on an existing covered contract. (As of this date, “fully vaccinated” means initial approved one- or two-shot regime – currently, booster shots are not included.)
The Guidance requires the following three primary elements:
The Guidance covers both full and part time employees working on or in relation to covered contracts – in construction that would be the job site and off-site home office personnel. The vaccination requirement also applies to employees working at home who are employed to work on or in relation to the covered contract – masking and social distancing would not bear on that home work location.
The Guidance does not address the question of payment for the vaccine, or any time off for adverse physical reaction to the vaccination. The Guidance does not offer regular weekly testing as an explicit alternative to testing or as an accommodation for valid exceptions. Neither does the Guidance address paid time off for testing, if that is allowed as an acceptable accommodation, or payment for that testing.
Some or all of these issues are present in the OSHA ETS development. MCAA has taken the position that paid time off for testing, if and when it may be allowed in lieu of vaccination, is entirely counterproductive to the goal of maximizing vaccination of the entire workforce. Both paid time off for testing, and employer pay for testing, is a disincentive to widespread vaccination acceptance – which is the goal of the recent Executive actions, and fully in line with the UA/MCAA Message on vaccination.
The Guidance requires covered employees to be “fully vaccinated” by the effective date of performance. “Fully vaccinated” is defined as two weeks after a one- or two-shot course of a currently approved vaccine under US Food and Drug Administration (FDA) or World Health Organization approvals – set out as: Pfizer-BioNTech, Moderna, Johnson & Johnson/Jansen, AstraZeneca/Oxford, and one trial vaccine candidate – Novavax COVID-19.
The vaccination rules apply to outdoor work. Prior COVID infection or proof of COVID antibodies is not a permissible exception. Worker attestation of vaccination is not acceptable documentation. Documentation of vaccination is to be presented in provider vaccination cards or vaccination records from health department records.
The Frequently Asked Questions (FAQ) section of the Guidance raises some key complicating issues and the need for ongoing regulatory clarification.
For example, Question 16 of the Guidance Frequently Asked Questions (p. 12 of the Guidance, asks: If the Safer Federal Workforce Task Force updates the Guidance to add new requirements, do those requirements apply to existing contracts? A. Yes. Covered contractors are required to, for the duration of the contract, comply with all Task Force Guidance for contractor of subcontractor workplace locations, including any new Guidance where the OMB Director approves the Guidance and determines that adherence to the Guidance will promote economy and efficiency in Federal contracting. The Task Force and OMB plans to ensure any workplace safety protocols reflect what is necessary to decrease the spread of COVID-19.”
This element of the Guidance raises the current question of whether and how the Government agency should equitably compensate contractors for COVID impact costs, imposed either before or after contract award. MCAA has been advocating for a COVID impact cost equitable adjustment mandate from OMB to Contracting Officers on existing contracts entered into pre-COVID and performed post- COVID. MCAA also is pressing for a FAR COVID cost escalation adjustment contingency clause in all contracts going forward to avoid across-the-board bid contingencies anticipating just such post-award added COVID compliance mandates on Federal contract and subcontract work performance.
These issues too are raised in Question 20 – Can a covered contractor comply with the workplace safety requirements from the Occupational Safety and Health Administration, including pursuant to any forthcoming Emergency Temporary Standard related to COVID-19, instead of the requirements of the guidance? A. No. Covered contractors must comply with the requirements set forth in this Guidance regardless of whether they are subject to other workplace safety standards.
This answer sets up the same issues with regard to paid time off for testing. If the OSHA ETS permits testing in lieu of vaccination (the Task Guidance does not permit testing in lieu of vaccination) – and then should go on to require that OSHA ETS covered employers (100+ employees) must pay for the testing and time off for testing, then the question is would that cost be recoverable under the FAR COVID cost contingency clause (if there is one in the FAR contract) since it’s required by OSHA – not the Federal Contract Guidance directly. Ideally, the Federal contracting COVID cost recovery equitable adjustment measure MCAA is pressing for should – in the extension of the equitable recovery – permit recovery of the OSHA ETS costs incurred by covered Federal prime contractors and subcontractors.
Note: The Guidance encourages agencies to apply the requirements to contracts for products (currently not covered) and to otherwise covered contract actions below the $250,000 threshold. It should be noted that the Guidance applies to all covered firms irrespective of employment levels; the OSHA ETS has a 100 plus employee threshold. Regular testing in lieu of vaccination is not an option under the Guidance, but it is under the OSHA ETS executive action. Who pays for that testing and time to take the tests remain to be determined in the OSHA rulemaking. Certainly, paid time off for testing in lieu of vaccination would not be in line with the regulatory rationale under the Federal Property and Administrative Services Act underlying the Guidance – promoting economy and efficiency of Federal contract performance.
The enforcement regime for the COVID-19 vaccination mandate on Federal contracts is the same as it is for any other FAR mandate and flow-down clause. In the first instance the Contracting Officer has oversight of the prime contractor performance, and the flow-down to subs and sub-subs is left to the lower tier parties. This is stated in the Guidance FAQ as follows:
“Q. What is the prime contractor’s responsibility for verifying subcontractors are complying with the mandate? A. The prime contractor is responsible for ensuring that the required clause is incorporated into its first-tier subcontracts in accordance with the implementation schedule set forth in Section 6 of the order [EO 14042 is the Effective Date schedule]. When the clause is incorporated into a subcontract, a subcontractor is required to comply with this Guidance and the workplace protocols detailed herein. Additionally, first-tier subcontractors are expected to flow the clause down to their lower-tier subcontractors in a similar fashion so that accountability for compliance is fully established throughout the Federal contract supply chain for covered subcontractor employees and workplaces at all tiers through application of the clause.”
Note: The Guidance does not require flow-down to material supply (products) providers on covered contracts. There is some speculation that the FAR regulations might do that. Also, further specificity on some of these issues might come out in the FAR regulations due October 8.
Below are links to the SFW Task Force Guidance (including the Frequently Asked Question elaboration) and related OMB announcement of ratification.
MCAA will continue to track and report regulatory developments on these issues affecting MCAA member forms as developments warrant.
MCAA will be presenting a webinar on these issues shortly after the FAR regulations are released. Watch MCAA.org for an announcement.
