How to Handle Religious Accommodations and Vaccine Mandates

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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

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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

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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

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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?

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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

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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.

Coronavirus: What Employers Need To Know.

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Employers have fears about the spread of coronavirus in the workplace.

I’ve gotten a few calls this week from clients concerned about coronavirus.  My clients have employees returning from travel to China/Korea/Japan and want advice on protecting the employee, their customers and co-employees.  From a practical perspective, the Centers for Disease Control have issued guidance for business owners on responding to coronavirus in the workplace:  CDC Coronavirus Guidance.

I.  Legal Issues

From a legal perspective, employers have two primary statutes that relate to their employees and coronavirus:  (1) the Occupational Safety and Health Act (“OSHA”); and, (2) the Americans with Disabilities Act.

OSHA has a “General Duty Clause” that requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” In short, employers have a general duty to protect employees from hazards. That’s great, in concept, but how does it apply to coronavirus?

At this stage, employers should take common-sense steps to prevent the spread of contagious illnesses in the workplace. Most employers already have these steps in place. Provide hand sanitizer at multiple locations. Regularly clean and disinfect public areas. Make sick employees stay home. If the cornavirus threat spreads in the United States, there may be increased duties under OSHA for employers to provide personal protective equipment and/or take other measures. But, those are not necessary at this stage.

Generally, the ADA prohibits employers from taking an adverse job action against an employee  who is disabled or “regarded as” disabled.  So, would the ADA prevent an employer from suspending or terminating an employee who is infected with coronavirus or suspected of infection?  I have strong doubts that the ADA would apply.  But, I will give my lawyerly disclaimer:  Only a judge and/or jury can make a final determination on legal liability.  In particular, the transitory nature of any virus is unlikely to amount to a disability under the ADA.  Moreover, the Eleventh Circuit has expressly found that an employer’s fear an employee might develop Ebola in the future does not amount to “regarding” the employee as disabled.  Here’s a link to a blog post that I wrote about that case:Fear of Future Infection and the ADA.  That analysis would seem to apply equally to fear of contraction of coronavirus.

Employers may also want to require their employees to undergo a medical examination.  Even though coronavirus might not be a disability, the ADA generally imposes restrictions on medical examinations regardless of an employee’s status as disabled.  The EEOC previously issued guidance on steps that an employer can properly take under the ADA relating to a pandemic.  Here’s a link to that guidance:  EEOC/ADA Pandemic Guidance.  In general, employers can ask employees about potential exposure to coronavirus; ask employees how they are feeling; and, require symptomatic employees to stay home.

II.  Practical Advice

If one of my Alabama clients has a genuine fear about coronavirus, I have advised them that they should allow asymptomatic employees returning from “hot spots” to work from home, if possible.  If work-from-home is not an option, then consider requiring the employee to stay home — and pay the employee at the employer’s expense.  If overhead makes gratis leave infeasible, consider requiring the employee to use accumulated paid leave.  Employers should consult with counsel before requiring an asymptomatic employee to take unpaid leave.

OFCCP is Updating Its Rules on Compliance Evaluations

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OFCCP is proposing to clarify its standards for compliance evaluations.

The United States Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) is updating its rules for evaluating compliance by federal government contractors with equal employment opportunity laws.  On December 27, 2019, OFCCP issued a Notice of Proposed Rule Making (“NPRM”), which can be found here:  OFCCP NPRM.  According to a Press Release, the purpose of the NPRM is to “provide federal contractors with greater certainty and transparency about the procedures that OFCCP follows during compliance evaluations to resolve employment discrimination and other material violations.”

This is good news for federal contractors because the new rules will make some aspects of an OFCCP compliance evaluation mandatory.  Typically, evaluation procedures are guided by OFCCP’s Federal Contract Compliance Manual (“FCCM”).  Yet, the agency makes clear that the FCCM “does not establish substantive agency policy.”  In other words, OFCCP can depart from the FCCM without violating the law.  The FCCM can be found here.

The proposed rule making clarifies the circumstances in which OFCCP will issue  a Predetermination Notice (PDN) of discrimination to contractors.  If OFCCP finds an employment or compensation disparity during a compliance evaluation, it will determine:  (1) if that disparity is “both practically and statistically significant”; and, (2) where relevant, whether nonstatistical evidence demonstrates an intent to discriminate.  If OFCCP cannot corroborate statistical evidence with nonstatistical evidence, it will issue a PDN only where the statistical evidence is significant at a confidence level of 99% or higher, which equates to three or more standard deviations. Currently, OFCCP pursues compensation audits based solely on statistically-significant disparities below this threshold.

So, the NPRM is good for employers because it limits the circumstances in which OFCCP will rely solely upon statistical evidence to make a predetermination finding of potential discrimination.  But, the NPRM also clarifies the types of nonstatistical evidence OFCCP will rely upon to bolster statistics that, on their own, would not warrant a PDN.

Nonstatistical evidence may include testimony about biased statements, remarks, attitudes, or acts based upon membership in a protected class; differential treatment through review of comparators, cohorts, or summary data reflecting differential selections, compensation and/or qualifications; testimony about individuals denied or given misleading or contradictory information about employment or compensation practices; testimony about the extent of discretion or subjectivity involved in making employment decisions; or other anecdotal or supporting evidence.

This portion of the NPRM is not as favorable for contractors. It provides no standards on how OFCCP will weigh any particular type of nonstatistical evidence.  Moreover, by including “discretion or subjectivity” in its definition of nonstatistical evidence, OFCCP is implicating the vast majority of employment decisions.  Almost every hiring or promotion decision relies, in some part, on discretion or subjectivity by the decision maker.

If OFCCP issues a PDN to a contractor, the contractor must respond within 15 calendar days unless OFCCP grants an extension “for good cause.”  That is a short window to respond.  If the contractor does not respond or provide a “sufficient response,” OFCCP may issue a Notice of Violation (NOV).  If OFCCP issues a NOV, it may offer the contractor the opportunity to enter into a conciliation agreement. That agreement “shall provide for such remedial action as may be necessary to correct the violations and/or deficiencies noted, including, where appropriate (but not necessarily limited to), remedies such as back pay and retroactive seniority.”

Finally, OFCCP’s proposed rule includes an “expedited conciliation option.” Under that option, a contractor can enter into a conciliation agreement before OFCCP issues a PDN or NOV.  Compliance evaluations and responses to PDNs can be extremely costly in terms of time and money.   The expedited conciliation option will provide contractors a procedure to remedy compliance issues without as much time or expense.

OFCCP is accepting public comments on the NPRM through January 29, 2020.  Instructions for submitting a comment can be found at this link:  OFCCP Comments

 

Government Contracts: Trump Ends Requirement to Hire Incumbents

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President Trump’s new executive order gives contractors control over hiring of incumbent employees.

A Burden Lifted – Hiring of Incumbent Workforce By Follow On Contractor – It Is Again Your Decision Who You Hire

“The Federal Government’s procurement interests in economy and efficiency are served when the successor contractor hires the predecessor’s employees.”  Or so began the Obama Era Executive Order, “Nondisplacement of Qualified Workers Under Service Contracts,” Executive Order 13495, 74 FR 6103 (Jan. 30, 2009).  The order required successor contractors to offer jobs to essentially all the incumbent workforce.  But, on Halloween, President Trump signed Executive Order 13897, “Improving Federal Contractor Operations by Revoking Executive Order 13495” Exec. Order No. 13897, 84 FR 59709, 2019 WL 5694266 (October 31, 2019), which revoked the prior order.  The old Executive Order required follow-on contractors to offer jobs to many “qualified” service employees when succeeding an incumbent government contractor providing the same or similar services at the same place.  The new EO directs the DOL to immediately terminate investigations and compliance actions based on the old order and withdraw rules and accompanying guidance implementing the old order.

Since President Obama signed EO 13495 in January 2009, its requirements, essentially giving a right of first refusal to non-managerial employees of the prior incumbent contractor, received criticism from government contractors.  The requirement was seen as unnecessary, since most contractors do hire the incumbent’s employees when a contract changes hands.  But in cases where the new contractor feels another employee would be better, the old EO effectively precluded that business decision being from carried out, creating inefficiencies and possibly increasing costs.  The DOL investigated and pursued alleged violations with vigor.  Ultimately, this administration decided to take steps to address the situation.

The decision is again in the hands of the government contractor.  They can decide who best to fill the positions when they take over a contract.  We expect contractors to continue to keep most of the incumbent workforce – as was the case before EO 13495.  But it is not a requirement now; and our clients in the federal government contracting industry can use their business judgment when deciding issues related to the new workforce when the contract transitions over.

So, what do you need to do?  Review solicitations out now and review your new awards to ensure the contracts and proposed contracts do not include language from EO 13495 or the implementing clauses.  Take exceptions in appropriate cases and use EO 13897 as the basis for doing so.

 

Catch-22: Government Customer “Suggests” Terminating an Employee

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What should government contractors do when their customer “suggests” terminating an employee?

In many government contracts, a contractor provides personnel who work for the government.  In most government contracts, the federal government Contracting Officer or Contracting Officer’s Representative (“COR”) does not have the power to require removal of employees of a government contractor.   In short, the COR can’t order that an employee be terminated.  But, a COR, or another government employee, can express displeasure with an employee.  As a result, my government contractor clients frequently ask me what to do when a COR, or other government employee, “suggests,” but does not require, that an employee be terminated.

Those clients are placed in a Catch-22 situation with no easy answer.  They want to keep the government customer happy to help ensure that they win renewals of the contract.  But, without explicit instructions, those contractors do not have a completely solid basis for termination.

That’s the situation that one government contractor faced in Security Walls, Inc. v. National Labor Relations Board, No. 17-13154, 2019 WL 1771291 (11th Cir. Apr. 23, 2019).  Security Walls, Inc. provided security guards to the Internal Revenue Service for its facility in Austin, Texas.  Three security guards negligently allowed visitors to enter the facility undetected.  In response, the Contracting Officer Representative wrote to Security Walls and said:  “If individual guards do not have the character and self-discipline to work at a federal installation and comply with the responsibilities associated, they will need to be removed.”

That seems like a pretty clear mandate.  Yet, the COR never explicitly said that the three guards, in particular, needed to be fired.  In fact, he suggested that the guards’ conduct did not constitute “careless behavior.”  Nevertheless, Security Walls conducted an investigation and determined that the guards violated two standards from its Performance Work Statement with the IRS.  Based on those violations, Security Walls terminated the guards.

But, the guards were members of a union, and Security Walls had a progressive discipline policy, which only permitted, at most, a two-day suspension for the guards’ conduct.  As a result, the Union filed an unfair labor practices charge with the National Labor Relations Board.  An Administrative Law Judge and the NLRB both ruled against Security Walls.  Thus, Security Walls appealed to the Eleventh Circuit Court of Appeals.

At the Eleventh Circuit, Security Walls argued that its Performance Work Statement with the IRS superseded its collectively-bargained progressive discipline policy.  The Eleventh Circuit was not persuaded.  Judge Tjoflat was skeptical that Security Walls held “a get-out-of-jail-free care when it cannot simultaneously comport with both the PWS and the NLRA.”  In fact, he found that Security Walls “might have voluntarily put itself between a rock and hard place from which there is no painless resolution.”  Nevertheless, he found that nothing in the Performance Work Statement required the guards’ termination.  Arguably, they violated the Performance Work Statement, but there was nothing in that statement mandating termination for violations.  As a result, Security Walls could comply with both the PWS and the NLRA, and the Eleventh Circuit affirmed the decision of the NLRB.

The Security Walls decision is a classic example of the difficulties faced by government contractors when a government agency suggests, but does not require, termination of an employee.  Those difficulties were compounded by collective bargaining issues.  It’s easy to “Monday Morning Quarterback” Security Walls’ termination decision and conclude that they should have followed their progressive discipline policy rather than jumping straight to termination.  But, in the heat of the moment with the IRS expressing clear displeasure over the guards’ performance, I can’t say that Security Walls’ decision was “wrong” from a business perspective.

From a business (rather than legal) perspective, Security Walls demonstrated to the IRS that they took their security obligations seriously and implemented prompt, serious consequences for breakdowns in security.  In the long-run, that business decision may outweigh the legal risks and costs associated with terminating the guards.  That risk/reward analysis must be conducted on a case-by-case basis by other contractors faced with similar dilemmas in the future.  Naturally, I recommend that contractors include their attorneys in any such analysis.