On October 20, 2021, Diz Locaria was quoted in Bloomberg Law on how the White House’s COVID-19 vaccine mandate for federal contractors is going to be enforced and what it takes to evade False Claims Act (FCA) liability.
According to the article, the compliance due date is December 8, and contractors don’t want to be accused of entering into a contract while planning not to comply or submitting claims for payment while knowing they didn’t comply with what was specifically demanded in their contract.
This concern is arguably amplified by unanswered questions about employees’ medical and religious exemptions, how a good-faith effort will be viewed, and how government agencies might punish noncompliance. However, a successful FCA claim requires showing scienter, or a knowing act to defraud the government, and a genuine effort to quickly satisfy the rules in spite of uncertainty may provide a strong defense against whatever FCA suits may come.
An FCA case “would have some problems” as long as a covered contractor has an action plan designed to achieve full compliance, the action plan is reasonably followed, and there are no obvious loopholes or areas of known noncompliance, said Locaria. “Given the confusion swirling around this EO and the relative short time frame that organizations have to comply, perfection would seem unreasonable,” he said.
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