President Biden’s Executive Order requiring private employers of over 100 workers to have all of their employees vaccinated is wending its way through the bureaucracy before being issued by the Occupational Safety and Health Administration (OSHA) as an Emergency Temporary Standard (ETS). In the meantime, the administration lost little time telling federal contractors and subcontractors how they are expected to get with the program.
On Sept. 24, the Safer Federal Workforce Task Force issued guidance that requires certain federal contractor employees to be fully vaccinated against COVID-19 by Dec. 8. Although calling the announcement a “guidance” may cause some confusion, the reality is that this is considered a binding order, not just a suggested course of action.
Vaccine mandates have become highly controversial in the wake of Biden’s announcement and reports that thousands of teachers and healthcare workers are losing their jobs for refusing to be vaccinated, in many cases because they already have the antibodies or can cite medical reasons supplied by their doctors.
In regard to a recent controversy that strikes at the very core of the mandate, the guidance offers no recourse to those who do not wish to be vaccinated because they have already had the disease and therefore possess natural immunity. The guidance in fact specifically states that prior COVID-19 infection does not exempt an employee from the mandate.
The only exceptions are for those legally entitled to an accommodation because of a disability or a sincerely held religious belief. However, the guidance doesn’t provide direction about how to evaluate accommodation requests and states only that an employer receiving a request “should review and consider what, if any, accommodation it must offer.”
To make matters murkier, the guidance does not lay out how the government plans to enforce the mandate or explain what the government intends to impose in the way of fines or penalties. There also is uncertainty surrounding how the Federal Acquisition Regulatory (FAR) Council will incorporate the vaccine, masking and social distancing requirements into contract language, and actions it will take to discipline contractors found to have violated those terms.
That will need to be done through a formal rulemaking proceeding, which is expected to be initiated in early October. And then, of course, there are the penalties that could arise from an eventual OSHA ETS pronouncement.
For an employer to come under the federal contractor vaccine mandate, it must enter into certain government contracts or “contract-like instruments” that were defined in the President’s Sept. 9 Executive Order on or after Nov. 14, 2021, if their contracts meet or exceed the simplified acquisition threshold, which is currently set at $250,000.
Contract-like instruments are defined as “awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications.”
The vaccine mandate does not apply to grants; contracts with Native American tribes under the Indian Self-Determination and Education Assistance Act; employees who perform work outside the United States; or subcontracts solely for the provision of products.
Covered contractors and subcontractors will be required to conform to the following workplace safety protocols:
• COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation.
• Compliance by individuals, including covered contractor employees and visitors, with the guidance related to masking and physical distancing while in covered contractor workplaces.
• Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
Attorneys Christopher Durham, Jonathan Segal and Meredith Gregston of the Duane Morris law firm note that even if an employee does not perform any work on or in connection with a covered contract, they will be subject to the vaccine mandate if they work at a location where any other employee performs work in connection with the contract.
“Remote employees who work on a covered contract but never go to a federal worksite or into an office nonetheless are required to be fully vaccinated in accordance with the mandate (though the employee would not be subject to the other safety requirements applicable to covered contractor workplaces),” they point out.
What Employers Should Do
In addition to mandating employee vaccination, covered contractors must also implement additional workplace COVID-19 safety measures, explain attorneys Durham, Segal and Gregston, including implementation of masking and social distancing requirements, and naming of COVID-19 safety person staff.
Contractors are required to implement and enforce masking and physical distancing requirements published by the Centers of Disease Control and Prevention (CDC), including sector-specific CDC guidance applicable to certain kinds of settings, including healthcare, transportation, correctional and detention facilities, and schools.
Because proper safety protocols (such as mask requirements for fully vaccinated employees) can differ based on the level of community transmission where a workplace is located, the guidance requires contractors to check the CDC’s COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace at least weekly to determine proper workplace safety protocols.
Contractors also must designate a person or persons to coordinate implementation and compliance with the guidance at workplaces, including the workplace safety protocols set forth in the guidance. Those people also are responsible for communicating workplace safety protocols to employees and “all other individuals likely to be present at covered contractor workplaces,” which includes posting signage.
Attorney Andrew R. Turnbull of the law firm of Morrison & Foerster offers employers advice on specific steps they should take right away. Recognizing that coverage issues remain murky and difficult, he recommends companies should:
• Compile a list of the contracts that are anticipated to be entered, modified, or extended after Oct. 15, 2021, that could be covered by the order.
• Assess which employees work on or in connection with those contracts.
• Track where those employees work to understand the work locations that may be covered by the masking and social distancing requirements.
Employers, Turnbull says, should create plans for ensuring employees who work on or in connection with a covered contract are fully vaccinated by Dec. 8, 2021, which includes:
• Determining which covered employees are fully vaccinated and not fully vaccinated.
• Creating systems for obtaining and maintaining actual proof of vaccination status and processes for employees to obtain proof of vaccination if they have lost their vaccine documentation.
• Developing contingency plans for ensuring covered employees who are not fully vaccinated either become fully vaccinated by Dec. 8 (unless eligible for an accommodation), or if possible transferred to work on contracts not covered by the order.
Employers also should review and, if needed, update procedures for addressing accommodation requests for disabilities and sincerely held religious beliefs, Turnbull notes. Also, they should devise plans for complying with confidentiality and privacy protections when implementing these requirements.
Also, designate a person or persons to oversee implementation and compliance, and plan for training human resource personnel and managers responsible for implementing the requirements.
In addition, create plans for masking and social distancing in accordance with CDC guidance for all individuals in workplaces where covered employees work. Monitor other federal and state laws that may impose additional requirements, including the rules for contractor employees working at federal facilities and the upcoming OSHA vaccination standard for employers with 100-plus employees.
Last but certainly not least, Turnbull suggest, make sure records of cost increases related to complying with the order are appropriately tracked and maintained, in order to support requests for cost reimbursements or equitable adjustments.
Federal agencies are being encouraged to to broadly apply these requirements to nearly all federal contracts, which Turnbull says emphasizes the need for contractors to remain watchful.
“All contractors—even those not explicitly covered by the order—should ensure that their employees who handle federal contracts and subcontracts are informed about the order and guidance, and are ready to scrutinize all contracts issued, modified, or extended after Oct. 15 to see whether the government is trying to subject them to these requirements.”