Last week was full of news out of Washington, D.C., about OSHA’s new emergency temporary standard for the COVID-19 vaccine and the president’s Build Back Better framework. NFDA’s full-time Advocacy staff is actively monitoring and assessing the impact of both of these critical issues for their impact on funeral service and small business. 

Rest assured, NFDA has your back on these issues and many others. 

COVID-19 Vaccine 

Last week, OSHA announced a new emergency temporary standard (ETS) to protect more than 84 million workers from the spread of the coronavirus on the job. According to the Biden Administration, the nation's unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them. A wrinkle in the Administration's plans emerged over the weekend when, in response to a lawsuit filed by at least 27 states, a federal appeals court issued a stay that, for now, halted implementation of the OSHA ETS by the January 4 deadline. 

Under this standard, covered employers (generally, those with 100 or more employees) must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. Click here to read OSHA’s full announcement. 

Find full details on the COVID-19 Vaccination and Testing ETS, including the full text of the ETS, fact sheets, FAQs, sample policies for employers, and more, here: https://www.osha.gov/coronavirus/ets2.

While many funeral businesses will be exempt from the vaccination and testing requirements in the ETS – the average NFDA-member firm has three full-time and four part-time employees – there are some that will be impacted. 

NFDA Endorsed Provider, SESCO Management Consultants, provided a helpful FAQ on the ETS, as well as vaccine requirements for federal contractors and healthcare workers (see below). 

As a benefit of membership, NFDA members can call the SESCO Human Resources Hotline or our OSHA hotline, staffed by the experts at Certified Safety Training, with questions; click here for more information about the hotlines staffed by SESCO and Certified Safety Training.  

From SESCO: 

The Occupational Safety and Health Administration (OSHA) has 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.

When must employees be fully vaccinated, or when must weekly testing start?

The ETS requires that workers be fully vaccinated no later than January 4, 2022. Employers’ obligations to provide paid time off begins December 4, 2021.

How does the ETS affect facilities regulated by the Centers for Medicare & Medicaid Services (CMS) and federal contractors/subcontractors?

The ETS clarifies that it does not apply to workplaces covered by either the CMS rule or the federal contractor vaccination requirement, but there may be overlap in some locations or for some workers.

Does the ETS apply to remote workers or those who work outdoors?

No. The ETS does not apply to: (1) employees who do not report to a workplace where other individuals (such as coworkers or customers) are present; (2) employees who work from home; or (3) employees who work exclusively outdoors.

How does the ETS interact with state laws restricting or prohibiting vaccine mandates in the workplace?

The ETS states that it preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing. Currently, 19 states have sued the federal government in response to the federal contractor vaccination mandate, and it is expected that states, companies and business groups will likewise challenge the ETS.

Who will pay for the cost of administering the COVID-19 test or the vaccine?

The ETS expressly states that it does not require employers to provide or pay for tests, but notes that employers may be required to pay for testing in accordance with other laws or pursuant to collective bargaining agreements.

What paid time off must employers provide?

According to the ETS, employers must provide a reasonable amount of time to each employee for each of their primary vaccination doses, must pay the employee for up to four hours of such time and must also provide reasonable time and paid sick leave to recover from side effects experienced following each dose.

Will employees still need to make accommodations for individuals with disabilities and religious objections?

Yes. The ETS allows accommodations for individuals with a disability or religious belief that prohibits them from being vaccinated. It also allows exceptions where a vaccine is medically contraindicated or where a medical necessity requires a delay in vaccination.

Questions like the following remain:

• How will the 100-employee threshold be counted?
• Will employers be required to collect proof of vaccination?
• What type of testing will be required?
• Will remote employees be covered?
• Will the employer have to pay for testing?
• Will unvaccinated employees be required to wear a mask when indoors?

We are closely monitoring this developing area of the law and will provide a more detailed analysis of the ETS requirements.

Federal Contractors

The President has signed an Executive Order requiring all federal contractors (regardless of size) with service contracts and all federal government employees be vaccinated, with no option of being regularly tested.

• Employees of federal contractors must be fully vaccinated by January 4, 2022.
• "Fully vaccinated" means two weeks have passed since someone received a single-shot vaccine or the second dose of a two-shot vaccine.
• New hires who start on or after January 4, 2022 must be fully vaccinated when their employment begins.
• Federal contractors must require documentation from employees to prove vaccination, even if an employee has previously attested to their vaccination status.

Health Care Workers

Health care workers at facilities receiving funds from Medicare and Medicaid are also required to be fully vaccinated by January 4, 2022. The rule issued by Centers for Medicare and Medicaid Services (CMS) 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.

Executive Orders Issued by State Governors Limiting Private Employers from Mandating Vaccine

Governors in several states have issued Executive Orders that prohibits employers from compelling an employee to receive a COVID-19 vaccine if that person objects to the vaccination “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”

NFDA will continue to monitor the lawsuit and updates on the implementation of the OSHA ETS and will share information when we have it. 

Build Back Better

No matter where you turn, you’ll see news about the Build Back Better framework – a pair of bills addressing infrastructure and social spending. While the President continues to urge passage of the bills, Congress continues to debate the size and scope of the bills and how to pay for what is included. Over the weekend, the House passed the infrastructure bill - which previously passed the Senate - and it is now on its way to President Biden for his signature. 

Included in the Build Back Better framework are a number of provisions that will benefit small businesses; however, there were two tax-issues that might cause harm and NFDA is speaking out against them on your behalf as Congress continues to debate the social spending package.  

NFDA joined with a coalition of associations representing small businesses to send a letter to House and Senate leadership urging them to oppose significant tax hikes on individual- and family-owned businesses. 

The letter states, “These businesses just survived a global pandemic and for Congress to impose massive tax hikes on them, with rates exceeding 50 percent in some cases, is simply unconscionable… Individually- and family-owned businesses comprise nearly all businesses in the United States and employ the vast majority of private-sector workers. Yet the Framework would significantly increase rates on those businesses at income levels well below the advertised thresholds.” 

NFDA also joined with the Family Business Coalition in sending a letter to the chairs of the Senate Finance Committee and the House Ways and Means Committee opposing any last-minute additions of provisions that would increase the estate tax. Congress previously rejected hikes to the estate tax to pay for the Build Back Better framework; however, some are concerned, as Congress continues to debate how to pay for the massive spending package that the estate tax could, once again, be on the table. 

The letter notes, “Family businesses across a wide number of industries tend to operate on small margins with their value almost entirely tied up in equipment, machinery, land, buildings, and other non-cash assets. That makes paying taxes on imaginary gains problematic. It also creates difficulties when attempting to pay estate taxes when no profitable sale has occurred, only the death of a business owner. Family businesses without sufficient liquid reserves to pay new taxes on capital and a more aggressive estate tax will be forced to fire workers, close branches, or shut down the businesses altogether. No family business should be forced into losing their business, employees, and their legacy in order to pay multiple layers of tax on the same dollar.”

NFDA will continue to monitor the progress of the social spending bill and be your ally and advocate in the halls of Congress.