Government Contracts

OSHA Vaccine Mandate Struck Down. CMS Mandate Survives.

Robert C. Lockwood
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The United States Supreme Court struck down OSHA’s COVID-19 vaccine mandate, but upheld CMS’s mandate.

This afternoon, the United States Supreme Court released two opinions dealing with the Biden Administration’s COVID-19 vaccine mandates.  In the first, the Court dealt a death blow to the OSHA mandate, which required vaccines and/or testing for all employers with 100 or more employees.  In the second, the Court found that the vaccine mandate for health care facilities was a valid exercise of power.

OSHA Mandate: National Federation of Independent Businesses v. Department of Labor

You can read the Supreme Court’s OSHA opinion here:  OSHA Opinion.  You may recall that the Sixth Circuit Court of Appeals issued an opinion in December upholding OSHA’s vaccine-or-test requirements.  Here’s the blog post that I wrote on that decision: Sixth Circuit Upholds Mandate.  Numerous States, businesses and nonprofit organizations asked the Supreme Court for emergency relief “staying,” or halting, the OSHA rule.  The Court granted that relief and the OSHA mandate is now on hold.

In short, the Court found that the United States Secretary of Labor lacked authority to impose the OSHA mandate.  The mandate “operates as a blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19.”  Moreover, the Court called the rule a “broad public health measure” which went beyond OSHA’s authority to “set workplace safety standards.”

Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

And, in concluding its opinion, the Court issued this declaration:  “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

Before this opinion was issued, some commentators thought that the Supreme Court might strike down the mandate because it exceeded the Secretary of Labor’s power to issue an emergency rule.  But, this opinion largely ignores the emergency nature of the rule and broadly says that the Secretary of Labor does not have Congressional authority to issue this type of broad health program.

The opinion leaves open the possibility that OSHA might be able to impose mandates in specific types of workplaces — if there is an “occupation-specific risk related to COVID-19.”

We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly  crowded or cramped environments. But the danger present in such workplaces differs in both  degree and kind from the everyday risk of contracting COVID–19 that all face.

So, we might see OSHA attempt more-narrow vaccine mandates in the future.  But, for now, the broad-based requirement for employers with 100 or more employees seems finished.

CMS Mandate: Biden v. Missouri

The CMS vaccine mandate was developed by the United States Secretary of Health and Human Services.  It applies to most medical facilities that receive Medicare or Medicaid funding.  For example, if a hospital wants to be paid for treating Medicare or Medicaid patients, it must ensure that its employees and medical staff are vaccinated, or have a valid religious or medical exemption.

In contrast to its OSHA opinion, the Supreme Court held that the Secretary of Health and Human Services acted within his authority when he implemented the CMS mandate.  The ultimate conclusion was that “there can be no doubt that addressing infections problems in Medicare and Medicaid facilities is what [the Secretary] does.”  Thus, the Court drew a stark contrast between the OSHA and CMS:

The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.

The opinion can be found here:  Supreme Court CMS Opinion

What About Federal Contractors?

Many of my clients are government contractors and are anxiously awaiting the fate of the Biden Administration’s mandate for federal contractors.  Right now, the federal contractor requirement is stayed nationwide.  Here’s the blog post I wrote about the stay:  Federal Contractor Mandate Halted.

The federal contractor requirement has not yet made it to the Supreme Court.  Do today’s opinions give us any clue how the Supreme Court might rule when it reviews the federal contractor mandate?  Maybe.

If I was forced to bet, I would guess that today’s opinions don’t bode well for the federal contractor mandate.  Essentially, the Supreme Court said:  “OSHA is not in the public health business, but CMS is.  So, we’ll let CMS regulate public health in medical facilities, but we won’t let OSHA regulate public health in the workplace.” The federal contractor mandate is the result of President Biden’s Executive Order 14042.  So, is the President in the public health business when he (or an executive agency) enters into contracts?

My gut says: “No.”  For that reason, I think the federal contractor mandate might get overturned.  Nevertheless, there are parts of the CMS opinion that support President Biden’s authority.  For example, the Court noted that “healthcare facilities have always been obligated to satisfy a host of conditions that address the safety and effectiveness of healthcare, no simply sound accounting.”  Also, the Secretary of Health and Human Services “routinely imposes condition of participation that relate to the qualifications and duties of healthcare workers themselves.”

Those findings can also apply to federal contractors.  For example, “[federal contractors] have always been obligated to satisfy a host of conditions that address the safety and effectiveness of [government services].” Also, federal agencies “routinely impose conditions of participation that relate to the qualifications and duties of [government contractor employees].”

Conclusion

As always, stay tuned.  When new developments occur, I will discuss them as soon as possible.

Federal Contractor Vaccine Mandate Halted Nationwide

Robert C. Lockwood
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A federal judge in Georgia has issued a nationwide injunction halting implementation of the vaccine mandate for federal contractors.

A federal judge in Georgia has halted President Biden’s vaccine mandate for federal contractors.  Judge R. Stan Baker found that President Biden exceeded his authority under the Federal Property and Administrative Services Act (“FPASA”) when he issued the mandate.  Here is a link to Judge Baker’s order:  Order Halting Mandate Nationwide.  Last week, I wrote about a similar order issued by Judge Gregory F. Van Tatenhove that halted the federal contractor mandate in Tennessee, Kentucky and Ohio.  I predicted that “the Georgia judge could use Judge Van Tatenhove’s order as a roadmap for a similar injunction.”  That prediction came true.  Although Judge Baker’s decision is not a word-for-word copy of the earlier order, it is virtually identical in substance and layout.  Judge Baker’s order is encapsulated in the following sentence:

The Court finds that Plaintiffs have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.

Like Judge Van Tatenhove, Judge Baker was also required to determine the geographic scope for his order.  The original plaintiffs (suing parties) were the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; the governors of several of those states; and various state agencies, including the Board of Regents of the University System of Georgia.  And, if those were the only plaintiffs, Judge Baker might have limited the scope of his order to those states.  But, before issuing his ruling on the injunction, Judge Baker allowed a new party,  Associated Builders and Contractors, Inc.  (“ABC”), to join the case opposing the mandate.  Because ABC is a trade organization with members throughout the county, Judge Baker found that his injunction needed to have nationwide applicability.

So what does this mean for federal contractors?

At a minimum, Judge Baker’s injunction gives some breathing room to federal contractors struggling to comply with the vaccine mandate.  At least for right now, the mandate is on hold.  But, for how long?

Judge Baker’s order will certainly be appealed to the Eleventh Circuit Court of Appeals in the next few days.  For example, the government appealed Judge Van Tatenhove’s order within three days.  The government will ask Judge Baker, and then the Eleventh Circuit, for an emergency order halting the nationwide injunction.  In short, the Eleventh Circuit could “reactivate” the mandate pending appeal.

We can glean some guidance on timing from a recent series of events in the State of Florida’s challenge to the mandate issued by the Centers for Medicare and Medicaid Services (“CMS”) for health care facilities: Florida v. Department of Health and Human Services, No. 21-14098-JJ, 2021 WL 5768796 (Dec. 6, 2021).  Florida filed a lawsuit and asked for a preliminary injunction halting the CMS mandate.  But, in that case, a federal judge in Florida issued an order refusing the injunction on November 20, 2021.  Florida appealed on November 24, 2021 and asked the Eleventh Circuit for an emergency ruling implementing the injunction.  On December 6, 2021, a  divided three-judge panel of the Eleventh Circuit entered an order rejecting that emergency motion.

In summary, the Eleventh Circuit issued an order within twelve days in the Florida CMS case.  So, it is probably reasonable to expect a similar timeframe when the government appeals Judge Baker’s order.

What can we expect when the Eleventh Circuit rules?  The answer to that question largely depends on the judges assigned to the three-judge panel that will review Judge Baker’s order.  In the Florida case, Judge Rosenbaum and Judge Jill Pryor spent a large part of their opinion criticizing a case issued by a judge in Louisiana (part of the Fifth Circuit) implementing a nationwide injunction while the Eleventh Circuit appeal was pending.  The opinion in the Florida case can be found here:  Florida v. HHS.  Judge Rosenbaum and Judge Pryor clearly thought that the Louisiana judge should not have entered a nationwide order, but instead limited his injunction to the parties before him, who were states.  Presumably, this is why Judge Baker added ABC as a party to his lawsuit — as part of an effort to establish that at least one the parties before him has nationwide interests.

Nevertheless, there is a possibility that the panel reviewing Judge Baker’s order might follow Judge Rosenbam and Judge Pryor’s lead and overturn at least the nationwide aspect of Judge Baker’s order.  If that happens, however, it is possible that the injunction might remain in place for the States before Judge Baker:  Alabama, Georgia, Idaho, South Carolina, Kansas, Utah and West Virginia.

Conclusion

This constantly evolving situation remains clear-as-mud.  Right now, it looks like federal contractors in Alabama have at least a two-week reprieve from compliance with the vaccine mandate.  During that time, I encourage contractors to ensure that they have policies and procedures in place for compliance with the mandate in the event that it is “reactivated” in some fashion.  Fortunately, even before Judge Baker’s order, the Safer Federal Workforce Task Force made clear that it was willing to work with federal contractors making “good faith efforts” at compliance.  If you have a plan in place for compliance, then I am hopeful that contracting officers will work with you in the future if the mandate is reinstated.

 

Federal Contractor Mandate Halted in Tennessee, Kentucky and Ohio

Robert C. Lockwood
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A federal judge in Kentucky has halted the federal contractor vaccine mandate in Tennessee, Kentucky and Ohio.

President Biden’s vaccine mandate for federal contractors has been halted in Tennessee, Kentucky and Ohio.  Those states filed a lawsuit on November 8, 2021 and asked for a preliminary injunction stopping enforcement of the order.  Yesterday, United States District Court Judge Gregory F. Van Tatenhove in the Eastern District of Kentucky entered an order granting that injunction.  Here is a link to Judge Van Tatenhove’s order:  Order Enjoining Contractor Mandate

In summary, Judge Van Tatenhove found that President Biden exceeded his authority when he issued an Executive Order implementing the mandate.   The order focuses on whether the mandate is a proper exercise of authority under the Federal Property and Administrative Services Act (“FPASA”).   Congress passed FPASA to create an economical and efficient system for procurement and supply for the federal government.  But, Judge Van Tatenhove found that a procurement statute could not permissibly be used to implement a public health measure:  “While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination.”

What does Judge Van Tatenhove’s order mean for federal contractors?

Strictly speaking, this order only impacts contractors in Tennessee, Kentucky and Ohio.  Contractors and subcontractors in those states do not have to comply with the mandate at this time.

What about contractors that are headquartered in Tennessee, Kentucky or Ohio, but have employees in other states?  Judge Van Tatenhove did not explicitly address that scenario.  The order says that the federal government is enjoined from “enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.”  So, if the contract is “in” one of those states, the injunction might arguably require contractors to halt vaccine efforts for employees outside the state.  The only way to get a real answer on this issue will be if one of the parties asks the Judge for clarification.

What’s next?

The order does not affect contracts “outside” Tennessee, Kentucky and Ohio.  Therefore, contractors outside those states should continue with their preparations for the vaccine mandate.  At the same time, keep watching the news.  Judge Van Tatenhove is not the only federal judge considering a challenge to the contractor mandate.

In fact, Alabama Attorney General Steve Marshall and the State of Alabama joined a similar lawsuit filed in the United States District Court for the Southern District of Georgia.  Here’s a link to a copy of the complaint in that case:  Georgia Contractor Mandate Lawsuit.  I’m told that a hearing has been set in that case for this Friday, December 3, 2021.  Potentially, the Georgia judge could use Judge Van Tatenhove’s order as a roadmap for a similar injunction.

Stay tuned.  I will update as I learn more.

New Flexibility for Federal Contractors Facing Vaccine Mandates

Robert C. Lockwood
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New guidance indicates that federal contractors will be given some flexibility in complying the President Biden’s vaccine mandate.

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.”

Conclusion

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.

 

How to Handle Religious Accommodations and Vaccine Mandates

Robert C. Lockwood
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There are numerous factors to consider if you are asked to provide a religious accommodation in response to a vaccine mandate.

I am getting swamped with calls wanting to discuss religious objections to vaccine mandates.  I’ve written about President Biden’s vaccine mandate here (Mandate Announcement) here (12/8 Deadline) and here (FAR Clause for Vaccine).  Government contractors have deadlines for vaccine compliance that are rapidly approaching.  Additionally, many private employers are rolling-out vaccine policies in advance of anticipated OSHA requirements.  Nevertheless, many employees don’t want to get vaccinated.  And, thanks to the internet, I’m seeing a lot of “cut and paste” religious objections to the vaccine.

For the sake of my clients, I’m not going to re-publish those objections.  But, many people seem to have the same beliefs regarding vaccines.  Presumably, those employees have read that there are two primary, legal avenues for trying to avoid the vaccine:  (1) the Americans with Disabilities Act; and, (2) Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination against individuals because of their “sincerely held religious beliefs.”  As I understand the literature, there are few medical reasons for avoiding the vaccine.  As a result, I am not seeing many requests for ADA accommodations.  Instead, presumably because of the subjectivity of whether a belief is “religious” and/or “sincerely held,” I am seeing many more requests for religious accommodation.

At least for federal contractors, the Safer Federal Workforce Task Force has recognized that employees are entitled to religious accommodations:   “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.”  (The guidance is found here:  Guidance for Federal Contractors.)  But, when asked to provide details on reviewing religious accommodation requests, the Task Force punted:

Q4:   Who is responsible for determining if a covered contractor employee must be provided an accommodation because of a disability or because of a sincerely held religious belief, practice, or observance?

A:   A covered contractor may be required to provide an accommodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, 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. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance. If the agency that is the party to the covered contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.

So, we know that employers are required to give accommodations.  Well, what is the process for giving an accommodation? Generally, there are two steps.

I.  DETERMINE IF A RELGIOUS BELIEF IS SINCERELY HELD

Historically, the United States Equal Employment Opportunity Commission has taken a liberal stance on this issue.  Here is a link to their guidance on religious discrimination:  EEOC: Religious Discrimination.  Generally, they don’t want employers second-guessing beliefs:

Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.

The EEOC has not provided any updated guidance on requests for accommodation in relation to vaccine mandates. As a result, employers are left to muddle-through without clear direction.  I don’t think there is a “right” or “wrong” way to approach this issue.  Instead, I think there is  sliding-scale of risk that each employer should review before determining if a belief is sincerely-held:

  1.   Take the employee’s word for it.  If an employee says he/she has a religious objection, an employer could just say:   “Ok.”  This is the easiest way to avoid a potential discrimination claim from the employee.  But, for federal contractors, I sincerely doubt that the federal government would accept this approach if vaccine compliance is audited.
  2. Get an attestation of truthfulness.  One step beyond taking the employee’s word is getting them to swear to the truthfulness of their beliefs.  Under this approach, the employee would sign a statement swearing or attesting under penalty of perjury that their statement of religious belief is true and correct.  This approach probably complies with the EEOC’s desire to avoid second-guessing.  It also would provide documentation to the federal government in the event of an audit.  Any documentation related to the accommodation process should be kept in a file separate from the employee’s regular personnel file.
  3. Ask some questions about the belief.  Does a “cut and paste” religious statement create an “objective basis for questioning either the religious nature or the sincerity of a particular belief” as recognized by the EEOC’s guidance?  Maybe.  Some employers are asking a few questions about the nature of an employee’s belief.  Can you provide any scripture to support your belief?  Can you provide a spiritual advisor that we can talk to who supports your belief?  The more questions you ask, the more danger that you run afoul of Title VII.  But, you probably get more cover in the event of a federal audit of vaccine compliance.
  4. Ask a bunch of questions about the belief.  One of the primary objections to vaccines is the claim that they were developed from fetal cells — implicating objections to abortion.  Some employers who are less risk-avers are providing employees with a list of  other medications developed from fetal cells and asking employees to affirm that they will not use those medications.  If you are going to question the sincerity of belief, the EEOC’s guidance says that the following are factors that could be considered:  “whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.”
  5. Determine that the belief is not sincerely held.  This is the most-aggressive stance, because it opens you up to claims of religious discrimination under Title VII.  If you are going to determine that a belief is not sincerely held, be prepared to explain why you came to that conclusion and have documentation of your decision.

II.   ENGAGE IN THE ACCOMMODATION PROCESS

A sincerely-held religious belief is not a “get out of jail free” card.  Employees don’t get to saunter around the workplace, consequence-free, because they have an objection.  Instead, Title VII merely requires an accommodation of a sincerely-held belief.  For federal contractor employees, unvaccinated employees must be masked in the workplace and in federal facilities.  Other accommodations designed to honor a belief, while also protecting co-employees, could include:  weekly COVID-19 testing; changing work locations to increase distance from other employees;  reassignment to another vacant and available position; telework; unpaid leave; or, a combination of options.

In some circumstances, it might not be possible to accommodate a religious belief.  Typically, this occurs where the only accommodation requested or available imposes an “undue hardship” on the employer.  The “undue hardship” standard is different from the “undue burden” analysis that sometimes occurs in disability accommodation cases.  An undue hardship is one that causes “more than a de minimis cost” to an employer.  But, the cost is not just monetary.  Instead, an undue hardship can be judged by the general burden on the conduct of an employer’s business.  The EEOC’s guidance recognizes that undue hardship can arise where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

 

When it comes to requests for a religious accommodation, I cannot emphasize the following point enough:  GO SLOW.  Determine your risk level.  Review the applicable facts of each case. Decide if accommodations can be made.  And, document, document, document.  Obviously, the assistance of a good employment lawyer is invaluable in that process.

 

 

 

Feds Issue FAR Clause to Enforce Vaccine Mandate

Robert C. Lockwood
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A new clause to the FAR and DEFARS will require contractor compliance with the Biden Administration’s vaccine mandate.

Somebody needs to tell the federal government that this is football season.  While I was driving to Tuscaloosa for the Alabama-Ole Miss football game, the Department of Defense, FAR Council and GSA issued a FAR deviation clause to assist in enforcement of President Biden’s vaccine mandate.  Here are the big takeaways.

  1. Comply with the Safer Federal Work Force Task Force Guidance.  President Biden’s executive order required development of a Federal Acquisition Regulation (“FAR”) clause to implement the vaccine mandate.  The FAR Council released that clause at FAR 52.223-99.  Most significantly, the clause says contractors “shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safe Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors.”  Here is the link to the FAR Council guidance:  FAR Council Guidance.  The Department of Defense language, found in DFARS Clause 252.223-7999, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-O0009), is virtually identical. The emphasized language  is crucial because it means that contractors must comply with future guidance issued by the Task Force.
  2. Get ready for modifications to existing contracts.  The Department of Defense Guidance (found here: DOD) and the GSA Guidance (found here: GSA) each discuss bilateral modification of existing contracts.  Moreover, when the Department of the Navy sent this guidance in an e-mail to one of my clients, it included the following statement: “This clause will be added to nearly all solicitations and new and existing contracts.” (emphasis added).  This strongly suggests that existing contracts will be modified to include the vaccine mandate.  Contractors should be prepared to negotiate any increased costs incurred because of the mandate.
  3. GSA: Look for modifications before November 14, 2021.  GSA contracting officers are supposed to “complete as many modifications as possible by November 14, 2021.”  For IDIQ contracts, if a modification is not returned by November 14, contracting officers can take “interim actions” including “temporarily hiding contractor information on GSA websites and/or e-tools” and “Flagging contractors that have not accepted the modification.”
  4. December 8, 2021 looks like a “real” date.  When the Safer Federal Workforce Task Force issued its guidance, I gave my initial thoughts here:  Blog on Mandate.  My initial thought was that many contractors would have a grace period of sorts to get employees vaccinated.  This was because the mandate only applied to new contracts, solicitations or options.  I thought contractors might have some additional time because many contracts would not come up for renewal/option for months.  The emphasis on modifications suggests that employers need to prepare for December 8.
  5. November 24, 2021 is the last date for the shot.  The government isn’t cutting contractors any slack.  The Department of the Navy’s e-mail started with this BLUF (“Bottom Line Up Front”):  “For your planning and action purposes, the current guidance is that all covered Federal support contractor personnel will be required to be fully vaccinated by 08 December 2021.   This means that by 08 December 2021 covered Federal support contractors must be at least two weeks past the second shot of a two-shot vaccine, or two weeks past the first shot of a one-shot vaccine.”  In short, the last day for your employees to get the shot is November 24, 2021.
  6. What about employees who can’t get the vaccine because they recently had COVID?  We have no direct guidance on this issue.  Nevertheless, the CDC says that people can get the vaccine after their quarantine/isolation period ends:  CDC FAQs.  The CDC also explicitly says that people should wait 90 days to get vaccinated if they received monoclonal antibodies during their COVID treatment.  If an employees must delay a vaccination for health reasons, I am advising employers to document the reason for delay (keeping that documentation confidential and separate from personnel files) and claim a temporary exemption for health reasons.

We still have received no guidance on the enforcement process for the vaccine mandate.  I will keep you updated as a I learn more.

Federal Contractors Must Be Vaccinated by December 8, 2021

Robert C. Lockwood
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New guidance was just issued imposing a December 8, 2021 deadline for federal contractors to get vaccinated.

By now, most employers know that President Biden announced a national vaccine mandate for COVID-19.  I wrote about his mandate and executive orders on September 9 here:  President Biden Implements Vaccine Mandate  One of President Biden’s orders directed the Federal Safer Workforce Task Force to develop guidance for federal contractor employees to get vaccinated.  Today, the Task Force released that guidance, which can be found here:  Guidance for Federal Contractors.

There is a lot to unpack in the guidance.  And, to be clear, my practice focuses on employment law.  I am working with my partners who specialize in the intricacies of government contracts.  We will provide additional interpretations as we digest this material.  In the interim, here are the big takeaways.

  1.  “Covered contractor employees must be fully vaccinated no later than December 8, 2021.”  President Biden’s executive order originally required that federal agencies place a clause in new/renewal/option contracts on or after October 15, 2021.  This sentence (found on page 5 and reinforced on page 11) seems to go a step further.  I think the Task Force is being intentionally vague here because it wants as many vaccines issued as quickly as possible.  The next sentence of the guidance says:  “After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded 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.”  As I read those two sentences together, the federal government wants the vaccine clause put into new contracts/options/renewal  and will start enforcing that clause on December 8.  Additionally, my partners who specialize in government contracts question whether the  government could unilaterally enforce a vaccine mandate without a contractual modification.
  2. Government contractors must appoint a person or persons to coordinate COVID-19 workplace safety efforts.  This individual will have several responsibilities:
    • They must communicate workplace safety protocols and policies by e-mail, websites, memoranda flyers or other means.
    • They must post signage setting forth the requirements and protocols in a readily understandable manner.
    • They must communicate safety protocols and requirements to all other individuals present at a covered workplace.
    • They must ensure that employees comply with requirements for showing or providing proper vaccine documentation.
  3. Government contractors must review covered employees’ documentation to prove vaccinated status.
    • It does not appear that contractors are required to keep a copy of vaccine documentation.   Instead, employees are required to “show or provide” documentation.
    • Employees can provide a digital copy such as a photograph or PDF of their record.
    • The following documents “count” for documentation purposes:  a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), a copy of medical records documenting the vaccination, a copy of immunization records from a public health or State immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.
    • “A covered contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.”
    • “An attestation of vaccination by covered contractor employee is not an acceptable substitute for documentation of proof of vaccination.”
    • Local laws, like Alabama’s vaccine passport ban, mean nothing.  “These requirements are promulgated pursuant to Federal law and supersede and contrary State or local law or ordinance.”
  4. Government contractors must enforce masking and monitor community transmission data at least weekly.
    • The guidance follows current CDC requirements that in areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask.
    • Contractors can only relax masking requirements when the level of transmission is reduced and remains “at that lower level for at least two consecutive weeks.”
    • Contractors must check the CDC’s COVID-19 Data Tracker County View website at least weekly to determine the proper protocols.  That Tracker can be found here:  CDC COVID019 Data Tracker
    • “Masks” are rigorously defined in the guidance.  The following are NOT “masks”:  masks with exhalation valves, vents, or other openings; face shields only (without mask); or masks with single-layer fabric or thin fabric that does not block light.   Presumably, “gaiters” are not allowed.
  5. Covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated.  As I understand matters, there is some debate on whether a prior COVID-19 infection provides ongoing, natural immunity to the virus.  In short, the federal government isn’t engaging in that debate.
  6. Employees who do not work directly on a federal contract must also be vaccinated.  This guidance tries to capture as many contractor employees as possible with two requirements:
    • Any contractor employee who performs work “in connection with” a covered contract must be vaccinated.  This includes all 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.
    • Any contractor employee must be vaccinated if they work in a “covered contractor workplace.”  This means any location controlled by the contractor where an employee who works on, or in connection with, a covered contract is likely to be present.
    • A covered workplace does not include an employee’s residence.

FREE VACCINE AND MASKING WEBINAR ON SEPTEMBER 28

Again, the foregoing points are just the highlights of the new guidance.  Please read the entire guidance carefully.  In a shameless plug, I can say that I am conducting a FREE WEBINAR on September 28 at 1:00 PM (CST) with my friend, Helen Holden, who practices employment law with Spencer Fane in Arizona.  Helen is a Rock Star in the employment law world.  Here is her web page:  Helen Holden.  Helen is the past Chair, and I am the Current Chair, of the Employment Practices Section of the Federation of Defense and Corporate Counsel.  Here’s a link to the FDCC’s web page if you want to learn more about them:  FDCC

I can promise that we will be talking in more detail about this guidance.  If you would like to attend, please click on this link:  FREE VACCINE/MASKING WEBINAR

 

 

 

President Biden Implements Vaccine Mandate

Robert C. Lockwood
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The Biden administration is requiring COVID-19 vaccines for government contractors and employers with 100 or more employees.

On Thursday evening, President Joe Biden addressed the nation and announced his plan for a “Path Out of the Pandemic.”  A broad outline of President Biden’s plan can be found on the White House web site here:  Biden COVID Plan.  That outline includes a vaccine mandate for all government contractors and private employers with 100 or more employees.  After the President’s address, the White House released two Executive Orders.  Here’s what we know:

1.  FEDERAL CONTRACTOR VACCINE MANDATE

After President Biden’s press conference, the White House posted a copy of an “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.”  Here’s a link to that order:  Exec. Order Vaccine Protocols/Contractors.  Highlights of the order include:

  • Significantly, the Executive Order does not explicitly implement a vaccine mandate.  Instead, the Order defers to guidance from the Safer Federal Workforce Task Force.  Nevertheless, given the tone of President Biden’s comments, it is safe to assume that the Task Force will mandate vaccines for federal government contractors.
  • Federal agencies must include clauses in their contracts requiring  contractors to comply with guidance issued by the Task Force.  The requirements in those clauses must also be flowed-down to subcontractors.
  •   Here’s a link to the Task Force’s current discussion of vaccines:  Task Force Vaccine Discussion.  You should regularly check that link because it will almost certainly change in the coming days and weeks.
  • The Task Force shall issue guidance by September 24, 2021 which will essentially provide details for the requirements of the Executive Order.
  • The Federal Acquisition Regulation (“FAR”) will be amended to implement the Executive Order.
  • The new clause will be included in all new contracts, extensions, renewals or options of contracts on or after October 15, 2021.

2.  FEDERAL EMPLOYEE VACCINE MANDATE

President Biden’s second Executive Order explicitly mandates COVID-19 vaccines for federal employees.  That order can be found here:  Federal Employee Vaccine Mandate.  Here are the highlights:

  • The order repeatedly finds that the “best way” to combat COVID-19 is to “be vaccinated.”
  • Based on that finding, the order finds “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”  I anticipate that those exceptions will be narrow and focus on people with disabilities and sincerely-held religious beliefs.
  • Once again, the Safer Federal Workforce Task Force will lead the way.  “The Task Force shall issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.”  So, we should have additional guidance by September 16, 2021.

3.  PRIVATE EMPLOYER MANDATE???? Employers with 100+ Employees

The Executive Orders do not address a vaccine mandate for private employers.  Nevertheless, the White House’s broad outline says that OSHA will be issuing an emergency standard mandating vaccines and/or testing for private employers with 100 or more employees:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The process for issuing an Emergency Temporary Standard (“ETS”) is governed by 29 U.S.C. § 655(c).  Under that statute an ETS will become effective immediately when it’s published in the Federal Register.  Prior to publication, however, the ETS will likely identify compliance dates and deadlines for when certain actions must occur. The ETS will also allow for a public comment period prior to publication.

4.  CONCLUSION

In large part, today’s news is:  “Hurry up and wait!”  We know that the federal government is going to implement a vaccine mandate.  But, we don’t know the exact contours of that mandate.  We should have more guidance from the Task Force in the near future.

I plan to provide regular updates on this issue.  I also maintain an e-mail distribution list for clients, friends and generally anybody interested in employment law issues.  If you would like for me to include you on that list, please send me an e-mail at:  rlockwood@wilmerlee.com

 

 

COVID Questions Are Back: Paid Leave? COBRA? Vaccine Laws?

Robert C. Lockwood
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The surge in the Delta variant of COVID-19 is causing questions for many employers.

In the last few weeks, COVID-19 cases and hospitalizations have risen with the increase in the Delta variant.  As a result, I’ve started receiving more COVID-related questions.  Here are some of the most-common questions and potential answers.

1. One of my employees has been diagnosed with COVID.  Do I have to provide them with paid leave?

No.  In Alabama, the laws mandating paid leave for COVID-related absence have expired.  In 2020, Congress passed the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act.  Those laws required employers to provide paid leave to employees suffering from COVID or caring for those with COVID.  The paid-leave provisions of those Acts ended on December 31, 2020.  As a result, employers are not longer required to provide employees with paid leave for COVID-related absences.

Nevertheless, employers can voluntarily provide paid leave and receive tax credits from the Internal Revenue Service.  The American Rescue Plan Act was enacted in the Spring and allows employers with fewer than 500 employees to provide paid leave and get a tax credit through September 30, 2021.  Here’s the Act IRS fact sheet discussing those credits:  IRS Paid Leave Guidance

2.  I recently terminated an employee.  Am I required to pay their COBRA premiums?

The American Rescue Plan Act also provides a significant benefit to employees who are terminated from employment.  From April 1, 2021 to September 30, 2021, employees who suffer a “qualifying event” and lose their health insurance can have their ongoing COBRA insurance premiums paid.  A “qualifying event” includes: a reduction in hours (such as reduced hours due to change in a business’s hours of operations; a change from full-time to part-time status; taking of a temporary leave of absence; an individual’s participation in a lawful labor strike, as long as the individual remains an employee at the time that hours are reduced); or, an involuntary
termination of employment (not including a voluntary termination).

Employers are required to pay the cost of the COBRA premiums.  But, employers can reduce their payment of federal employment taxes on a dollar-for-dollar basis.  Here is the United States Department of Labor’s discussion:  DOL COBRA Premium Guidance

3.  Alabama has a new law prohibiting disclosure of vaccination status.  How does this affect my business?

Alabama Act Number 2021-493 is Alabama’s “COVID Passport” law.  For businesses, the law’s most-significant impact is its prohibition on refusing to provide goods or services, or refusing to allow admission, to an individual based on the customer’s immunization status or lack of immunization documentation.  Many commentators have noted that the law does not have an enforcement provisions.  So, it is unclear what penalties, if any, would be imposed for violating the law.  Nevertheless, I generally suggest that businesses should comply with the law.

Alabama Attorney General Steve Marshall has also issued guidance on implementation of the law, which can be found here:  Alabama’s Vaccine Law.  For purposes of this blog, the most notable portion of that guidance is the recognition that the act only “protects consumers of goods and services and does not address employer-employee relationships. Thus, it cannot be read to prohibit private employers from requiring employees to vaccinate against COVID-19.”

Government Contractors: President Bans Certain Diversity Training

Robert C. Lockwood
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President Trump’s new Executive Order prohibits government contractors from training employees on certain “divisive concepts.”

On September 22, 2020, President Trump issued an Executive Order which prohibits government contractors from conducting training which it calls “race and sex stereotyping and scapegoating.”  Here is a link to the Executive Order: Order on Race and Sex Stereotyping

What Training is Prohibited?

Every new federal contract must include a clause that prohibits training by government contractors for employees on the following “divisive concepts”:

  1.  One race or sex is inherently superior to another race or sex;
  2.  The United States is fundamentally racist or sexist;
  3.  An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  4. An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  5. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  6. An individual’s moral character is necessarily determined by his or her race or sex;
  7. An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
  8.  Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or,
  9. Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The order also prohibits training that includes “race or sex stereotyping,” which means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.”  Additionally, training cannot include “race or sex scapegoating,” which means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”

While not explicitly called-out, the Order appears to take square aim at stopping diversity training programs teaching about “white privilege” and/or critical race theory.

What Other Obligations Are Imposed On Contractors?

Federal contractors must flow-down the requirements of this Executive Order to their subcontractors and vendors.  It is not clear whether subcontractors must further flow-down these requirements to their subcontractors.

Contractors must post a notice about these training obligations in “conspicuous places” available to employees and job applicants.  Each contracting officer is supposed to give that notice to the contractors.  Contractors must also provide the notice to any applicable labor union.

When Does the Order Become Effective?

The Order’s training prohibitions are supposed to be placed into ever new contract issued on or after November 21, 2020.  It is not clear whether the requirements will be placed into contract renewals.

What Are the Consequences of Violating the Order?

The Order does not mandate any specific penalty if a contractor conducts prohibited training.  Nevertheless, the contractual language notes the possibility of punitive measures such as terminating, suspending, or canceling contracts, and potentially debarring contractors.

What’s Next?

Almost certainly, this order is going to be challenged in court.  In the interim, government contractors should pay close attention to new contracts (and even contract renewals) to determine if the training provisions have been included.  If so, then contractors should carefully review any diversity training to ensure that they do not run afoul of this new order.