Safer Federal Workforce Task Force Issues Updated FAQs on COVID-19 Vaccine Mandate
The Safer Federal Workforce Task Force released updated Frequently Asked Questions (FAQs) for Federal Contractors on Nov. 1, 2021, regarding its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the Safety Guidance), originally published on Sept. 24, 2021, as directed by President Joe Biden's Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (E.O. 14042). The Executive Order, the Safety Guidance and the FAQs collectively detail the scope of a vaccine mandate to be imposed on federal contractors and subcontractors.
The Task Force's new FAQs cover vaccine and safety protocols, scope and applicability as well as compliance, and follow statements from the White House that the vaccine mandate "will not cause disruption" to the federal contracting workforce. In response to questions from the media, the White House stated that the deadlines in the Safety Guidance (including the Dec. 8, 2021, vaccination deadline) "are not cliffs" and that once those deadlines arrive, the Biden Administration "expect[s] federal agencies and contractors will follow their standard HR processes and that, for any of the probably relatively small percent of employees that are not in compliance, they'll go through education, counseling, accommodations, and then enforcement."
The Dec. 8 deadline, while weeks away, still looms large for many federal contractors and subcontractors as they scramble to understand their compliance obligations stemming from the Federal Acquisition Regulation (FAR) clause created pursuant to the E.O. Under the new FAR clause, FAR 52.223-99, contactors must comply with "all guidance, including guidance conveyed through Frequently Asked Questions, as amended" published by the Task Force.
Summary of Newly Released FAQs
Vaccine and Safety Protocols
The first set of new FAQs address vaccine documentation, timing for processing accommodation requests and protocols to be followed after a covered contractor employee receives an accommodation.
Vaccine documentation. The FAQs address the vaccine verification protocols set forth in the Safety Guidance and clarify that covered contractors need not review or collect physical or digital copies of their employees' vaccination documentation if they otherwise have access to such documentation. In accordance with applicable privacy laws, contractors can rely on documentation previously collected from employees, available through an employer-sponsored vaccination program or from a state immunization database.
Time for processing accommodation requests. The FAQs provide that requests for accommodation do not need to be resolved by the time the covered contractor employees begin work on a covered contract or at a covered contractor workplace. Recognizing that contractors "may still be reviewing requests for accommodation" at the beginning of performance, the FAQs provide that while accommodation requests are pending, covered contractors must follow the masking and physical distance protocols specified in the Safety Guidance for unvaccinated individuals.
Protocols for covered contractor employees entitled to accommodations. For covered contractor employees who are legally entitled to an exemption from the vaccine requirement, the FAQs affirm that federal agencies have discretion to determine the workplace safety protocols unvaccinated contractor employees must follow while onsite (i.e., while visiting a federal workplace). In most circumstances, this will require compliance with masking, physical distancing and testing protocols.
The FAQs provide, however, that "in some cases," agencies may determine that "no safety protocol other than vaccination is adequate" – in which case unvaccinated contractor employees would not be able to work onsite. The FAQs further state that "[s]uch circumstances do not relieve" contractors from meeting their contractual requirements. The FAQ provides that covered contractors with onsite employees "should generally notify their contracting officers when one of their employees who works onsite at a Federal workplace has received an exception to the requirement to be fully vaccinated."
Scope and Applicability
The second set of FAQs address the applicability of the Safety Guidance to a covered contractor's corporate affiliate. The FAQs seem to adopt the U.S. Small Business Administration's (SBA) test for affiliation – "control or the power to control" – and provides that employees of a covered contractor's corporate affiliate are considered "covered contractor employees" if the employees "perform[ ] work at a covered contractor workplace." Further, workplaces controlled by a covered contractor's corporate affiliate are considered "covered contractor workplaces" if covered contractor employees are "likely to be present during the period of performance for a covered contract" at the corporate affiliate's workplace.
The final set of new FAQs address compliance concerns; specifically, what steps covered contractors should take if employees "refuse" to be vaccinated and what steps agencies should take if covered contractors do not comply with the Safety Guidance.
Covered contractor enforcement of covered contractor employees. For covered contractors with employees resisting the vaccine requirement, the FAQs leave enforcement largely to the contractors' discretion. The FAQs state that contractors "should determine the appropriate means of enforcement" such as following "usual processes for enforcement of workplace policies[.]" The FAQs offer the "model" being followed by federal agencies: "utilize an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary." "Removal," presumably from work on or in connection with a covered contract, "occurs only after continued noncompliance."
The FAQ stops short of imposing a hard line (a "cliff," if you will) for "removal" of unvaccinated covered contractor employees, stating only that removal "occurs only after continued noncompliance." Until then, the employees must continue to follow the masking and physical distancing safety protocols.
Agency enforcement of covered contractors. With regard to federal agencies' enforcement of the Safety Guidance, the FAQs counsel that contracting officers "should work with" contractors who encounter challenges with compliance, where the contractors are working "in good faith" to comply. The FAQs suggest that "good faith" means "taking steps to comply" with the Safety Guidance.
Where covered contractors are not "working in good faith," the FAQs again stop short of imposing a hard line. The FAQs instruct agencies should (but not must) take "significant actions, such as termination of the contract."
Finally, while the FAQ stops short of imposing a hard line on agency enforcement action, it leaves open what other "significant actions" agencies may take where covered contractors are not "working in good faith" to comply with the Safety Guidance.
The new FAQs are mainly helpful by clarifying that both covered contractors and federal agencies are permitted some flexibility in the implementation and enforcement of the vaccine mandate. Nevertheless, related best-practice recommendations remain largely the same, and covered contractors should be mindful that compliance appears to remain the bottom line.
Specific takeaways for covered contractors include:
- While the additional options for verifying employee vaccination status may be helpful to many covered contractors, great care should be taken when accessing employee medical records without an employee's express authorization. Covered contractors should ensure they are aware of applicable state law and should adopt and follow appropriate protocols to limit and manage internal access to such records.
- Covered contractors should not delay in soliciting and evaluating employee requests for exemption from the vaccine mandate. Applicable law requires employers to engage in an interactive process to evaluate such requests. Further, in the event related reasonable accommodations cannot be identified and implemented, the FAQs are clear that staffing impacts will be the responsibility of the contractor and will not excuse contractors from performance.
- The new FAQs expand the scope and applicability of the Safety Guidance to the employees of a covered contractor's corporate affiliate, if the affiliate's employees perform work at the covered contractor's workplace. Relatedly, the corporate affiliate's workplace is considered a "covered contractor workplace" if the covered contractor's employees are "likely to be present" at the workplace. Read literally, this means that the corporate affiliate's workplace is a covered contractor workplace if covered employees may visit the site – meaning, the workplace is "covered" even if covered contractor employees are never actually present (just "likely to be").
- While the FAQs indicate an intent for agencies to work with contractors in the face of the Dec. 8 deadline, the FAQs fall short of providing clarity on specifics. However, it is clear that covered contractors will have more time and flexibility than the Dec. 8 date in the E.O. to attempt to persuade resistant employees to comply with the vaccine requirement. The FAQs do not identify the recommended employee "counseling and education materials" with specificity and seem to assume, without support, that such materials will be effective in addressing and overcoming employee resistance to vaccination. While this may or may not ultimately prove true, active listening and empathy can go a long way in building trust and respect between employer and employee. When a covered contractor can no longer avoid enforcement of its vaccination policy, a workplace culture of trust and respect generally minimizes the risk of employment claims, even in connection with employee terminations.
- On enforcement, the FAQs counsel agencies to take "significant actions, such as termination of the contract" in the event contractors are not working in good faith to comply. On this point, it is worth emphasizing that contract terminations, whether for default or the government's convenience, must be appropriately taken in accordance with the terms of the contract's termination clause (e.g., FAR 52.249-2, Termination for Convenience of the Government (Fixed-Price), FAR 52.249-8, Default (Fixed-Price Supply and Service). The government's termination rights are not unlimited; terminations must not be in "bad faith."
- Aside from "termination of the contract" the FAQs largely leave open what other "significant actions" agencies should take. Other less drastic options could include, among other things, an agency declining to exercise available options under a contract, suspending contract payments and other remedies available to agencies in the face of noncompliance with contractual requirements.
For more information or questions regarding vaccine mandates, the Safety Guidance or related topics, please contact the authors or a member of Holland & Knight's Government Contracts Group.