White House walks back a few possible steps from its government-contractor mandate

In one of his recent vaccine mandates, President Biden ordered all government contractors to have their personnel vaccinated by December 8, 2021, with permission arguably given later for exemptions for religious and disability accommodations. The federal government’s Safer Federal Workforce Task Force issued guidance affirming and fleshing out the mandate for government contractors. The mandate has by now been formally implemented into many government contracts pursuant to FAR 52.223-99, DFARS 252.223-7999, etc.

On October 27, 2021, White House Coronavirus Response Coordinaor Jeff Zients is widely reported as having walked back the mandate at least to some extent by saying December 8 was not a strict deadline — or in his reported words, not a “cliff” — and that the Whie House would permit some “flexibility.”

The Safer Federal Workforce Task Force then issued FAQs on its webpage that bring the December 8 deadline into question. To be sure, the FAQs warn, December 8 remains the deadline set in the President’s Executive Order, and a company’s failure to ensure that its covered workers be vaccinated or exempt due to a religious or disability accommodation remains grounds for contract termination, debarment, etc. However, the FAQs — although not its prior guidance — now suggest that:

• An employee whose request for religious accommodation or disability accommodation may be able to be kept employed by the contractor while that request is being processed,
• And, an employee who has not requested a religious or disability accommodation or who has been denied one may also be able to be employed for at least some limited period of time while a stepped process is employed attempting to start with counseling and education for the employee about vaccination.
• Both employees would, at all times, be have to comply with masking and social distancing requirements, even if fully vaccinated individuals are exempt from such requirements due to the protection offered by the vaccine.
• Additionally the FAQs note particular government agencies may impose heighted requirements above and beyond those otherwise applicable in government buildings and under applicable state and local requirements.

How will that actually work? The White House and Task Force offer no specifics. Hopefully, they will provide some sort of detailed step-by-step process employers can follow to comply with this increasingly unclear mandate. Until then, government contractors are reminded that, despite these new softer words from the White House and Task Force, the President’s Executive Order remains the law. Employers who fail to meet the December 8 deadline risk severe penalties including contract termination and future debarment.