Pending accommodation requests: It’s okay if you’re still reviewing requests for accommodation due to disabilities or sincerely held religious beliefs at the time that employees begin work on a covered federal contract or at a covered contractor workplace. These employees should follow applicable workplace safety protocols for people who aren’t fully vaccinated.
Approved accommodations: If you approve an employee’s request to be excused from the vaccine mandate for a religious or medical reason, the federal agency you’re working with will determine what safety protocols apply. In general, this will mean wearing a mask and keeping at least 6 feet apart from others, and possibly undergoing testing for COVID-19. The agency may determine, however, that some job responsibilities cannot be safely performed unless the employee is fully vaccinated. In that case, an unvaccinated employee won’t be allowed to perform the work on the federal contract. If you’re sending workers to a federal facility, the FAQs state that you should notify the contracting officer at the federal agency if you approve an exception to the vaccination requirement for any of those workers.
Corporate affiliates: If your company is a covered contractor and has any corporate affiliates, an employee of the affiliate is covered by the vaccine mandate if they perform work at your covered contractor workplace. Similarly, if one of your employees working on or in connection with a covered contract is likely to be physically present at a workplace controlled by a corporate affiliate, that workplace becomes a covered contractor workplace. Affiliates are entities in which either one has the power to control the other or a third party has the power to control both. Examples of factors indicating control include “interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.”
Refusals to be vaccinated: The federal government isn’t dictating disciplinary measures for employees who refuse to be vaccinated and aren’t approved for a religious or medical accommodation. You’re responsible for determining what to do. The FAQs suggest applying your normal process for enforcing workforce policies. While you’re working your way through that process, the employee should continue to follow the safety protocols for workers who aren’t fully vaccinated.
Flexibility in government enforcement: As long as you’re working in good faith to address compliance challenges, federal contracting officers won’t be rigid about enforcing the COVID-19 safety protocols. However, if you’re not taking steps to comply, they may terminate the federal contract.
Federal contractor vaccine mandate takes precedence over OSHA ETS: The federal contractor vaccine mandate takes precedence over OSHA’s COVID-19 emergency temporary standard (ETS) for companies with 100 or more employees. (OSHA’s rule allows testing as an alternative to vaccination, while the federal contractor mandate doesn’t offer that option.)
Verifying subcontractors’ compliance: Unless you have credible evidence that your covered subcontractors on the federal contract aren’t complying with the vaccine mandate, your only responsibility is to include the appropriate language in your subcontracts notifying them of their obligations. There isn’t any limit on how far down the chain these obligations flow, as long as the dollar amount and type of contract meet the applicable requirements.
Tips: The FAQs clarify and expand on the COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors (updated 9/24/2021), on which we previously reported. As we explained there, the guidance encourages federal agencies to impose the new safety protocols on all contractors, even those not covered by President Biden’s executive order. The executive order covers federal contracts and subcontracts for services, construction, leases of real property, and concessions, but not supplies (such as purchases of federal timber) or grants. The order also doesn't apply to federal procurement contracts whose value is less than or equal to the simplified acquisition threshold, which is currently $250,000.
As a result, companies are faced with a hodgepodge of contract language, depending on how a given federal agency decides to implement the mandate. It all started on September 30, 2021, when the Federal Acquisition Regulation (FAR) Council issued a memo that provided the basic text of a new clause for federal contracts and subcontracts, which tracks the provisions in the Executive Order. The new language, numbered FAR 52.223-99, is entitled “Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Oct 2021) (Deviation).” Because of the tight time frame for implementation, the FAR Council didn't have time for its normal notice and comment process, so it quickly cranked out this “Deviation” clause and gave other agencies the go-ahead to either use it “as is” (consistent with the Executive Order) or come up with their own “Deviation” clauses with expanded coverage. Bottom line: If you sign a new federal contract or if your existing federal contract is modified, read the fine print to see what language is being applied to your organization. You'll have to incorporate that same language into any covered subcontracts. If you have any questions about the federal contractor vaccine mandate, contact your Vigilant Law Group employment attorney.