On Friday, the White House’s Safer Federal Workforce Task Force released new guidance (the “Guidance”) for vaccinating federal contractors and subcontractors. Under the Guidance (available here), employees of federal contractors (and subcontractors) have until December 8, 2021 to be “fully vaccinated” or request and receive a medical or religious accommodation.
The Guidance provides that, beginning on November 14, the vaccination requirement must be added to any “new” federal contract and any existing federal contract that is “renewed.” However, federal agencies are “encouraged” to include the vaccine requirement in their federal contracts beginning on October 15.
As we previously reported, on September 9, President Biden announced “hard” vaccine mandates for healthcare workers and federal contractors. A “hard” mandate means that employees must receive the vaccine or a medical or religious accommodation. Unlike a “soft” mandate, testing in lieu of vaccination is not an option. Remember, President Biden also announced that OSHA would issue a “soft” mandate for employers with 100 or more employees.
The Guidance released on Friday does not address the OSHA standard or the CMS rule for healthcare workers. These rules are still being drafted. That said, the Guidance offers insights into how the OSHA and CMS rules may be drafted.
Testing Is Not an Option
As noted above, employees of federal contractors do not have the option of “testing” in lieu of receiving the COVID-19 vaccine. Instead, on or before December 8, 2021, employees of federal contractors (and subcontractors) must be either: (a) fully vaccinated for COVID-19 (i.e., two weeks after the final dose) or (b) receive a religious or medical accommodation:
Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.
The Guidance recognizes that employees may need an accommodation under the ADA because of a medical contraindication or under Title VII because of a sincerely-held religious belief:
A covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. Requests for “medical accommodation” or “medical exceptions” should be treated as requests for a disability accommodation.
How Broad is the Federal Contractor Mandate?
The vaccine mandate applies to all full- and part-time workers “working on or in connection with a covered contract or working at a covered contractor workplace.” Thus, in addition to covering those working “on or in connection” with the federal contract, it also covers non-federal contractor employees performing other, non-covered work at the same facility (i.e., a “covered contractor workplace”). In fact, the Guidance makes clear that “covered contractor employee” can include “employees of covered contractors who are not themselves working on or in connection with a covered contract.”
A “campus-like environment” constitutes one “covered contractor workplace” even if only one building houses all of the people who work “on or in connection with” the federal contract/subcontract unless a covered contractor can affirmatively determine that none of its employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract.
There is a limited exception for employees who perform work exclusively at the “employee’s residence” (i.e., telecommuters), but even that exception may not apply if the individual is deemed a “covered contractor employee.” Thus, with some (very) limited exceptions, the mandate seemingly covers nearly all of the federal contractor and subcontractor’s employees.
In a separate FAQ, the Guidance suggests that even those who do not perform work on the federal contract but whose work is “necessary to” the covered contract are covered by the mandate:
Q17: What constitutes work performed “in connection with” a covered contract?
A: Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.
Federal Contractors Cannot Freely Grant Accommodations
As noted above, the Guidance states that vaccination is required “unless the employee is legally entitled to an accommodation.” This seems to suggest that a contractor cannot comply with the Guidance by liberally granting medical or religious exemptions to requesting employees if the employee is not “legally entitled” to the accommodation.
Instead, in accordance with the ADA and Title VII, the contractor seems to be required to carefully review the exemption request, gather any additional information, and make a decision based on existing ADA and Title VII standards.
A covered contractor must review its covered employees’ documentation to prove vaccination status. Specifically, covered contractors must have a designated person or persons that will implement the Guidance and “ensure that covered contractor employees (including visitors) comply with the requirements . . . related to the showing or provision of proper vaccination documentation.”
The Guidance strongly encourages agencies and covered contractors to incorporate the Order into non-covered contracts and subcontracts, and all contracts prior to the date upon which the Order requires inclusion of the clause. For covered contracts, the Guidance specifically refers to companies that provide food services, onsite security and groundskeeping services at covered contractor workplaces.
Conflicting State Laws Will Likely Be Preempted
In addition, while some states have passed laws prohibiting vaccine mandates, the Guidance makes clear that it preempts any conflicting standard:
Q19: Does this clause apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in this Guidance?
A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in this Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under this Guidance.
Federal contractors need to act quickly to implement the sweeping standards set forth in the Guidance. While the Guidance leaves many questions unanswered, federal contractors (and subcontractors) should begin planning for a contracting environment where all new and renewed contracts will require vaccination of employees beginning as soon as October 15.
For non-federal contractors, the Guidance provides insight into how the federal government will prescribe “hard mandates.” Remember, though, employers not covered by the federal contractor rules or the CMS rules will not be required to implement a “hard” vaccine mandate. Instead, the forthcoming OSHA ETS rule will allow employees to undergo COVID-19 testing in lieu of receiving the COVID-19 vaccine.
We will continue to monitor this issue as it develops.