The vaccination mandate for employees of federal contractors and subcontractors as well as other private and government employers’ vaccine requirements, have provoked mounting anger and protests among employees who are resisting being forced to accept the needle.
The federal contractor mandate imposed by the Biden administration has already resulted in disruptions in airline service and other business operations from employees engaging in sickouts and public demonstrations. Lawsuits have been filed on behalf of federal workers and members of the military, as well as hospital and healthcare workers and law enforcement personnel, although thus far they have been unsuccessful.
Once the Biden administration moves forward with its plan for the Occupational Safety and Health Administration (OSHA) to issue a nationwide vaccine mandate for all private employers with 100 or more employees, the controversies could become even more intense than they have been since he announced the requirement would be forthcoming.
A major source of anger has been the steadfast refusal of government and private employers to grant medical and religious exemptions from the jab in the vast majority of cases where they were requested. This has happened even when the employees’ personal physicians support the medical requests as well as when the employees have previously suffered from and gotten over the COVID infections and therefore possess natural immunity.
The original guidance for federal contractors in fact explicitly directed that that prior COVID-19 infections would not exempt contractor employees from the mandate.
Medical exemptions from the vaccine mandate are only allowed in two situations: where the employee has had severe allergic reaction (such as anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine; or the person had an immediate allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the COVID-19 vaccine.
That continued resistance to medical exemptions remains in place, but newly expanded guidance issued in late October by the agency charged with supervising the federal contractor mandate, the Safer Federal Workforce Task Force (SFWTF), attempts to spell out how delays sought for medical reasons should be handled.
“Because such revisions may reflect new obligations for covered contractors in their federal work, it is critically important that contractors stay current as to what those obligations are and take the measures they can to mitigate the risk and cost impact of any ‘uncertainties’ in these requirements,” say attorneys G. Scott Walters and Alexander Gorelik of the Smith Currie & Hancock law firm.
Delaying the Vaccination
New additions to the SFWTF frequently-asked-questions (FAQ) are based largely on recommendations that have been issued by the Centers for Disease Control and Prevention (CDC). Most of the new questions and answers deal with when vaccinations can be delayed and when they cannot.
In certain circumstances, the task force agrees with CDC recommendations for delaying vaccinations for COVID-19 for:
- People with known current COVID infection until the person has recovered from the acute illness (if the person had symptoms), and they have met criteria to discontinue isolation.
- People with a history of multisystem inflammatory syndrome in adults (MIS-A) should consider delaying vaccination until they have recovered from their illness and for 90 days after the date of diagnosis of MIS-A.
- Vaccination should be delayed for 90 days after receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment.
- A patient’s clinical team is best positioned to determine the degree of immune compromise and appropriate timing of vaccination.
- People who develop myocarditis or pericarditis after a dose of an mRNA COVID-19 vaccine should delay receiving a subsequent dose. People who choose to receive a subsequent dose should wait until myocarditis has completely resolved.
- People who have a history of myocarditis or pericarditis unrelated to mRNA COVID-19 vaccination may receive any currently approved COVID-19 vaccine after the episode of myocarditis or pericarditis has completely resolved. This includes resolution of symptoms attributed to myocarditis or pericarditis, as well as no evidence of ongoing heart inflammation.
The task force stresses that this is not an exhaustive list of the circumstances in which clinical considerations may recommend in favor of delaying vaccination. However, the regulators spell out that a contractor should require that individuals become fully vaccinated promptly after clinical considerations no longer recommend delay.
During the period in which vaccination is delayed, a contractor employee must follow masking and physical distancing protocols for not fully vaccinated individuals. Also, when the contractor’s employee works in a federal workplace, the agency may determine that no safety protocol other than vaccination is adequate. In that case, contractor employees who are not fully vaccinated would not be able to work at the federal workplace.
COVID-19 vaccinations continue to be recommended for what the task force somewhat oddly terms as “people who are pregnant” as well as those who are breastfeeding, trying to become pregnant now, or trying to become pregnant in the future. However, in these circumstances a contractor may choose to allow an employee to delay, if that is consistent with the contractor’s process for reviewing delay requests.
“The updates to the information about the guidelines reflect the dynamic nature of the vaccination requirements for federal contractors and subcontractors stemming from the President’s order,” explain attorneys Walters and Gorelik.
They also encourage contractors to consult with competent human resources professionals and employment lawyers while continuing to monitor the task force’s website to be able to adhere to further updates as they are developed.