Today, the Safer Federal Workforce Task Force released new guidance giving flexibility to federal contractors attempting to enforce President Biden’s vaccine mandate. The new guidance can be found here: Updated Contractor Guidance. I’ll discuss some of the details of the guidance below. But, I also want to draw your attention to the following statement in an article from CNBC:
Senior administration officials made clear that Dec. 8 is not a hard deadline for contractors to have all of their employees fully vaccinated. Instead, contractors must demonstrate they are making a good faith effort to ensure employees are getting vaccinated and have plans in place to ensure masking and social distancing policies are followed in the workplace.
The entire article from CNBC can be found here: Federal Contractors to Get Broad Flexibility. Obviously, a statement from anonymous “senior administration officials” is not perfect, but it provides some indication of the flexibility the administration is willing to give contractors as they struggle to comply with the mandate.
Here are my big takeaways on the new guidance:
1. Contractors will have additional time to work on accommodation requests.
Federal contractors are still struggling with employees requesting medical or religious exemptions from the vaccine mandate. I previous wrote about strategies for dealing with exemption requests here: Handling Religious Exemption Requests. Engaging in a good faith accommodation process takes time. But, there’s a December 8, 2021 deadline on which the mandate will commence for many new or modified federal contracts. The new guidance gives some flexibility to work on accommodation requests:
Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?
A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.
In short, contractors can still process exemption requests after December 8.
2. Contractors can go slow in disciplining employees who refuse vaccination.
Many contractors have wondered if they are required to terminate non-vaccinated employees on the December 8 deadline. The new guidance makes clear that each contractor “should determine the appropriate means of enforcement ….”
But, the guidance also says employers should follow their “usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.” The guidance also suggests that contractors can follow the example set by Federal agencies by utilizing “an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance.” That statement strongly suggests that the government will give contractors some period of time to use discipline (short of termination) as a means to obtain compliance with vaccine requirements.
3. This is flexibility, not a “get out of jail free” card.
While the government seems sympathetic to contractors who are encountering difficulty implementing the mandate, the new guidance also makes sure to stress that compliance is mandatory.
Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.
The lesson here: Contracting Officers should work with contractors who are “working in good faith” to comply. But, contract termination is possible if you don’t work in good faith.
4. Who are “affiliates” that must comply with the mandate?
The new guidance also demonstrates that the administration is serious about including the maximum number of people possible within the mandate. At the beginning of the mandate process, I wrote a blog post that noted “indirect” employees would be included in the mandate. (Federal Contractors Must Be Vaccinated) Today’s update makes clear that a “corporate affiliate” of a government contractor can also be caught-up in the mandate.
“[B]usiness concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.”
And, if an employee of a covered contractor is performing in the workplace of an “affiliate,” then the affiliate’s workplace is also covered by the mandate: “If any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.”
Moreover, if the workplace is covered, then all affiliate employees in that workplace must be vaccinated or receive an exemption: “An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.”
Stay tuned. This guidance is constantly changing. Moreover, an article just published by the Washington Post says that OSHA’s mandate for employers with 100+ employees will be released this week: OSHA Vaccine Rule Finalized. I will provide my thoughts as soon as I see it.