Feds issue further guidance on Biden vaccine mandate for government contractors

the Safer Federal Workforce Task Force has issued further guidance explaining what government contractors can expect as President Biden’s government contractor vaccine mandate is implemented. Highlights of this most recent guidance include the following:

  • As explained in a previous post, the government-contractor mandate’s requirements will be imposed by way of a FAR (Federal Acquisition Regulation) to be included in covered “contracts and contract-like instruments.” The guidance defines that phrase, as follows:

Contract and contract-like instrument – has the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors,” 86 Fed. Reg. 38,816, 38,887 (July 22, 2021). If the Department of Labor issues a final rule relating to that proposed rule, this term shall have the meaning set forth in that final rule.

That proposed rule defines a contract or contract-like instrument as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing. The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute. Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so. In addition to bilateral instruments, contracts include, but are not limited to, 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 term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.

    • Companies may note that definition includes contracts and subcontracts, whether in writing or verbal. Likewise it applies to contracts involving “any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement,” specifically including construction.
  • The requirement will need to be passed down from contractors to all “lower-tier subcontractors.”
  • The requirement will reach not only those “covered contract employees” who work on federal workplaces but those who work in private workplaces, even if outdoors. It includes full-time and part-time workers, and it will include a joint employer principle. Covered companies will also need to impose the mandate on visitors to their workplace (at least as to masking and socially distancing). It will reach beyond the work on the contract itself to all employees who are either “themselves working on or in connection with a covered contract.”

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.

  • The requirement will mandate that the covered contractor review and confirm vaccination by way of certain documents, to include a standard official vaccine card, but not to include self-attestation by the person nor proof that the person is positive for antibodies. Proof of so-called “natural” immunity, in other words, proof that the person has already had a COVID-19 infection, is not sufficient; the person must provide proof of actual vaccination. Proof of vaccination can be displayed digitally, in other words, a photograph of a vaccine card will suffice. The guidance does not at least on its face mandate that the covered contractor retain a copy of that proof, only that the individual “show or provide” it.
  • The requirement will include a mandate that covered contract employees wear a mask and socially distance, except, in low or moderate community transmission areas, a fully-vaccinated individual will not be required to wear a mask.
  • Limited exceptions will be permitted:
    • To the extent required as a legally mandated form of accommodation (example, for religious or disability reasons).
    • When the government contracting agency determines there is an “urgent, mission-critical need” for workers before they can become fully vaccinated, in which case the vaccination mandate may be extended for such individuals up to 60 days after they begin work.
  • The requirement will mandate that each covered contractor designate a “person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.”
  • The effective date of these requirements will depend on the date of the contract or contract-like instrument.

Q12: By when must the requirements of the order be reflected in contracts?
A: Section 6 of the order lays out a phase-in of the requirements for covered contracts as follows:
• Contracts awarded prior to October 15 where performance is ongoing – the requirements must be incorporated at the point at which an option is exercised or an extension is made.
• New contracts – the requirements must be incorporated into contracts awarded on or after November 14. Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.

  • These requirements will apply in addition to the forthcoming OSHA rule that will apply to companies of 100 or more. In other words, employers who are subject to the government-contractor mandate will have to comply with these requirements, employers who are subject to the 100-employee/OSHA rule will have to comply with that rule, and employers who are subject to both these government-contractor requirements and the 100-employee/OSHA rule will somehow have to comply with both, or at least that appears to be what the guidance is suggesting.

Q20: Can a covered contractor comply with workplace safety requirements from the Occupational Safety and Health Administration, including pursuant to any current or forthcoming Emergency Temporary Standard related to COVID-19, instead of the requirements of this Guidance?
A: No. Covered contractors must comply with the requirements set forth in this Guidance regardless of whether they are subject to other workplace safety standards.

  • Once a contractor becomes subject to these requirements, they will be subject to any new or changed requirements issued by the Safer Federal Workplace Task Force, even during mid-term of a covered contract.
  • These requirements will apply even if inconsistent with state or local laws to the contrary.

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.

 

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Biden vaccine mandates: What private employers know so far

On 9-9-2021, President Biden announced sweeping vaccine mandates that will affect private employers.

So far, what do private employers know to expect?

  • Employers of 100 or more workers will be required to implement vaccine-or-test mandates. Employees who opt not to be vaccinated will be required to be tested weekly. Employees will need to be provided paid time-off to be vaccinated. Fines could be $14,000 per violation.
    • OSHA has been tasked with implementing guidance explaining this new mandate.
  • Government contractors will be required to implement vaccine mandates for their workers. It appears that this government contractor obligation will not allow a test-out option. It appears that this will apply only to contracts entered into after October 15, 2021. It is noted that this “appears” to be the case, because the Biden administration and its Executive Order on this mandate so specify; however, government contractors should review their current contracts to confirm that they do not already require compliance with future FAR (Federal Acquisition Regulations) that may be adopted during the current contract’s term.
    • It is also noted that the Executive Order does not actually apply to “government contractors.” “Government contractors” is not a phrase defined in law. Rather the Executive Order reaches all federal “contract or contract-like instruments.” It defines that term, as follows:

For purposes of this order, the term “contract or contract-like instrument” shall have the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors, ” 86 Fed. Reg. 38816, 38887 (July 22, 2021).  If the Department of Labor issues a final rule relating to that proposed rule, that term shall have the meaning set forth in that final rule.

    • It is noted that the definition of “contract or contract-like instruments” at 86 Fed.Reg. 38816 is very specific and involved. It does not include all forms of government contracts, but it does include some forms of government relationships one might not consider to be government contracts. In other words, that phrase is a technical legally defined phrase, it is not coextensive with the lay term “government contracts.” Some companies that one might think are “government contractors” will not be covered, and some one might think are not “government contractors” will be covered. It will be a technical issue for review against that very specific regulatory definition.
    • Government contractors are encouraged to provide their current and anticipated government contracts to their attorneys for legal review against 86 Fed.Reg. 38816
    • The Executive Order mandates the federal government to issue further guidance on this government-contractor mandate no later than 9-24-2021, with additional deadlines thereafter through 10-8-2021 for further guidance.
  • Medicare and Medicaid providers as well as some other health-care settings such as some nusing homes will be required to impose some form of mandate.

What don’t we know?

We still know virtually nothing about the specifics of how these mandates will actually work. Hopefully we will be receiving guidance from the various government agencies soon. Questions we still do not know include:

  • How workers will need to be counted for the 100-employee mandate.
  • What government contractors will be subject to the government-contractor mandate (see above re “contract or contract-like instruments” and re new-versus-existing contracts).
  • Whether any or all of these mandates will permit opt-outs or other forms of accommodation for disability or religious reasons. The White House announced that federal workers will have accommodation opportunities, but it is not clear to what extent these new mandates will permit accommodations for private employees.
  • When OSHA will implement the required guidance, though it has been mandated do so within the coming weeks. Whether it will do so by way of a standard or informal guidance. Whether it will issue a proposed then final draft according to normal rulemaking processes, or if, as it appears from the way President Biden described it, OSHA will skip the proposed draft stage and simply issue a final version all at once as an emergency rulemaking.
  • Whether paid time-off to be vaccinated will be required only under the 100-employee mandate, or if it will also be required for government contractors and Medicare/Medicaid employers. Whether paid time-off will be required for testing for those who are allowed to opt-out of vaccination. Whether there will be a pass-through permitted to allow the costs of that paid time-off to be credited against federal taxes for example.
  • What the compliance burden and related costs (including the costs of testing and possibly vaccination) will be. At least some of these expenses will be borne by the federal government, as it has been announced the government will spend $2-billion to acquire new tests.
  • What documentation, recordkeeping, examination/inquiry restrictions and other processes will be required for these various mandates.
  • What end-date these mandates will have, in other words, when they will expire.

What have been reactions so far?

Reactions by the business community continue to be mixed. Many companies have already adopted vaccine mandates, with vax-or-test programs probably being among the most common. For such companies these mandates may provide some clarity as to how companies can best implement such mandates. However, many companies, especially in traditionally red-political communities, face strong pushback from their workers, customers, etc., and have been reluctant to do so.

Is litigation likely?

Litigation is expected to challenge all aspects of the new mandates. It is probable that at least some cases will produce rulings before these new mandates start taking effect. Having said that, employers can expect it to come down to the very wire. Therefore, companies should not simply take a wait-and-see approach. Companies will need to start assessing as soon as possible their obligations, if any, and how they will implement these new mandates. Unfortunately, as noted, companies are having to wait at least for now for further guidance from the various government agencies involved.

 

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