Last week, the Safer Federal Workforce Task Force Released new guidance concerning the requirements for federal contractors under Executive Order 14042 (available here). This new guidance supplements the original Task Force Guidance released in September (which Venable covered here). The Occupational Safety and Health Administration ("OSHA") also issued its much awaited emergency temporary standards ("ETS") mandating vaccinations or testing for employees of employers with more than 100 employees (which Venable covered here). The Safer Federal Workforce Task Force has also announced that the vaccination deadline for covered contractor employees will be pushed back from December 8, 2021 to January 18, 2022 (the updated Task Force guidance is available here). Finally, the OSHA ETS has been enjoined in district court, albeit, the federal contractor mandate remains effective.
In short, it's been a busy few weeks keeping track of the vaccine mandate requirements, but now we take stock of where things are and what federal contractors must do.
Takeaways From The Additional Task Force Guidance:
One of the more noteworthy developments from the additional guidance is the Executive Order's potential impact on covered contractors' corporate affiliates. The guidance clarifies that the Executive Order's requirements extend to the employees of covered contractors' corporate affiliates, including affiliated entities that do not themselves hold contracts with the government, if the affiliate's employees perform work at a "covered contractor workplace." It also clarified that a facility owned and controlled by a corporate affiliate will qualify as a "covered contractor workplace"—regardless of whether that affiliate holds government contracts—so long as any employee of a covered contractor working on or in connection with a covered contract is likely to be present in that facility during performance of the contract. This closes a loophole that may have allowed the transfer of employees to a corporate affiliate that did not hold a government contract to avoid application of the vaccination requirement.
The additional guidance also provides proposed consequences if a contractor fails to take steps to comply with FAR 52.223-99 or DFARS 252.223-7999 once incorporated into a contract, stating that agencies should take "significant actions, such as termination of the contract" in such situations. However, where a contractor is working in good faith to comply with the clause, the guidance states that the agency should work with the contractor to address compliance-related challenges. For example, when a covered contractor employee refuses to be vaccinated, the guidance recommends that contractors use 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 contractors follow the approach federal agencies use to encourage compliance: providing a limited period of counseling and education, followed by disciplinary measures if necessary, and removal after continued noncompliance. Rather than placing employees on administrative leave while pursuing an adverse action for noncompliance, the federal agencies' guidance requires such individuals to comply with safety protocols for individuals not fully vaccinated (i.e., masking and physical distancing) when reporting to worksites. While this is certainly a welcome development, the guidance does not provide any detail as to the length of time one may be employed without being vaccinated (or a legally permissible accommodation) before they would need to be removed.
Finally, the guidance provides some additional clarification on vaccination and safety protocols for federal contractors:
- A contractor is not required to collect documentation of its employees' vaccination status if the contractor can access the information directly (without violating privacy laws), such as when the contractor previously requested the employee to provide vaccination documentation, has existing documentation from an employee vaccination program, or can access information through a State's immunization database.
- A covered employee may begin work on a covered contract while the contractor is still reviewing the employee's request for an accommodation, provided that the contractor requires the employee to follow the masking and distancing guidelines for not fully vaccinated individuals.
- The contracting agency has discretion to determine the workplace safety protocols applicable to individuals that have been given an accommodation by the contractor.
- Covered contractors should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals. The guidance provided sample signage for areas of high or substantial levels of community transmission here and areas of low or moderate levels of community transmission here.
Impact of OSHA Standard on Federal Contractors:
Perhaps a welcome reprieve is that OSHA's ETS does not apply to workplaces of federal contractors that are complying with Executive Order 14042. To better align the two regimes, the Biden Administration announced that the deadline for federal contractor vaccination would be pushed back to coincide with the ETS's deadline. Specifically, the Safer Federal Workforce Task Force updated its guidance to push back the full vaccination deadline to January 18, 2022, requiring the final shot (of a two-shot vaccination regiment) or the single shot of a one-shot vaccination to be performed by January 4, 2022.
Other Observations:
In response to Executive Order 14042 and the guidance, agencies are taking varied approaches toward implementation. As reported before, while the Executive Order is required of certain federal contractors and required for inclusion into federal contracts at prescribed times (e.g., upon new awards or the award of an option), agencies were encouraged to rollout the requirement more broadly. For example, one of the more aggressive agencies has been the U.S. General Services Administration ("GSA"), which has taken the approach of issuing bilateral modifications to all existing contracts to incorporate FAR 52.223-99, not just service contractors. Further, GSA's modification states that acceptance by November 14, 2021 is "mandatory," and contractors that do not sign the modification will "not be eligible for any new order after that date." However, GSA has signaled its intention to remain flexible on the January deadline so long as contractors are demonstrating progress in meeting the requirements of the clause. GSA advised contractors to sign the modification even if the contractor does not believe it can get all covered contractor employees vaccinated by the deadline, stating that it views "acceptance of the modification as an agreement that the contractor intends to comply with the terms."
GSA has also launched a COVID Protocols Contractor Dashboard displaying the contractors that have accepted and rejected the COVID-19 vaccine modification. As of the date of this article, the dashboard showed that approximately 83% of contracts (14,525 out of 17,375) have "accepted" the modification.
Finally, at least 19 states have filed at least 4 lawsuits challenging Executive order 14042 in U.S. District Courts in Texas, Florida, Georgia, and Missouri. Similar challenges to the OSHA ETS have been filed in the Fifth, Sixth, Eighth, and Eleventh U.S. Circuit Courts of Appeals. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS based on "grave statutory and constitutional issues with the Mandate." To date, no such injunction has been issued against the implementation of Executive Order 14042.
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Venable recognizes that a sea change of this sort is difficult for all organizations. As such, we will continue to monitor the guidance and news regarding these requirements and provide updates accordingly.