Safer Federal Workforce Task Force Releases New Federal Contractor FAQs. This Time Providing Contractors with Discretion to Enforce Vaccine Mandate Rules

On November 1, 2021, the Safer Federal Workforce Task Force (“Task Force”) again updated its FAQ site to provide additional insight into the Federal Contractor vaccine mandate and corresponding safety protocols related to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  Importantly, covered contractors are required to comply with these FAQs due to the explicit language in the implementing contract clause. These FAQs supplement the Task Force’s update from October 21, 2021, summarized here, and a subsequent update from October 29, 2021. 

The newest FAQs appear to respond to concerns that strict enforcement by the federal government could disrupt the U.S. economy as unvaccinated employees may either quit or be terminated for non-compliance with the federal contractor vaccine mandate. Last week, Jeff Zients, White House Coronavirus Response Coordinator, previewed several of what are now the November 1^st FAQs, including stating that covered contractor employees would not be required to take immediate action against unvaccinated employees who are not vaccinated by December 8^th (or by any subsequent deadline based upon the extension, renewal or exercise of options on an existing contract). We summarize this and other relevant FAQs below.

Enforcement

Perhaps the most helpful FAQs are those which address the many compliance questions previously unanswered in the Task Force’s original Guidance for Federal Contractors and Subcontractors. Specifically, the FAQs give covered contractors the discretion to determine the appropriate means of enforcement for covered contractor employees who refuse to be vaccinated and do not have a pending or authorized accommodation/exemption. In other words, a covered contractor need not immediately terminate an employee who does not comply with the vaccine mandate, nor even prevent the employee from working on or in connection with the federal contract. This discretion includes allowing the covered contractor to follow its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements. 

As an example, the Task Force describes the model used by Federal agencies when a federal employee does not comply with the vaccination requirement. This model suggests the Federal agency use an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Agency guidance further suggests that employee removal should occur only after “continued non-compliance” (which is not specifically defined). The Federal agency model also advises that employees should not be placed on administrative leave while the agency is pursuing adverse action for non-compliance, but instead, the employee can continue working and follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites.

Based upon this example, an unvaccinated covered contract employee may still work on the covered contract, so long as the employee follows all workplace safety protocols for unvaccinated individuals, such as wearing a mask and social distancing. However, an agency may still determine that a covered contractor employee who refuses to be vaccinated may be denied entry to a Federal workplace, consistent with the agency’s workplace safety protocols. 

This also means that contractors could potentially take a more measured approach to compliance, by first offering education and counseling (but only for a “limited period”), and then focusing on progressive discipline. Indeed, contractors with multi-step progressive discipline policies may be able to retain employees who refuse vaccination even longer. 

Vaccination Timing

With regard to the timing for compliance, the Task Force clarifies that employees who have requested an accommodation/exemption may continue to work on the covered contract or at a covered workplace while the request is pending. In such case, the covered contractor employee must follow the relevant safety protocols outlined in the Task Force’s original Guidance for individuals who are not fully vaccinated.

Similarly, if a contractor grants a covered contractor employee an accommodation/exemption, the employee must follow the workforce safety protocols required by the Federal agency. In most circumstances, this could mean following applicable masking, physical distancing, and testing protocols. However, there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a Federal workplace, or the location of their work at a Federal workplace, requires heightened safety protocols. Further, in some cases, an agency may determine that the nature of a covered contractor employee’s responsibilities at a Federal workplace are such that no safety protocol other than vaccination is adequate—in that case, the covered contractor employee who is not fully vaccinated would be unable to perform the requisite work at the Federal workplace.

With this in mind, the Task Force makes clear that covered contractors should generally notify their contracting officers when one of their employees who works onsite at a Federal workplace has received an accommodation/exemption to the requirement to be fully vaccinated. Such notification does not appear to be necessary for covered contract employees who do not work onsite at a Federal workplace.

Vaccination and Safety Protocols

The original Task Force Guidance states that a contractor “must review” and may accept one of the following documents to prove the covered contract employee’s vaccination status:

• 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 new FAQ states that a covered contractor need not require an employee to show documentation proving vaccination status if the covered contractor can access the vaccination documentation directly (subject to relevant privacy laws). For instance, if the contractor had previously requested and received vaccination documentation from the employee, has evidence of vaccination as part of an “employee vaccination program,” or if the employer can access vaccination information through a State’s immunization database, the employer does not need to require the employee to provide proof of vaccination status again. We note that “employee vaccination program” is not defined, and could refer to an in-house vaccination clinic offered by the organization, or even an incentive program where employees must report their vaccination status to receive the incentive. 

Scope and Applicability of Task Force Guidance for Federal Contractors

The new FAQs include two (2) questions focusing on “corporate affiliates” to covered contractors. The Task Force states that business 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. Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.

Ultimately, however, even if an entity is a corporate affiliate to a covered contractor, an employee of the corporate affiliate is only considered a covered contractor employee if the employee performs work at a covered contractor workplace. Similarly, 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.

Conclusions

Despite the broader flexibility reflected in the new FAQs, the Task Force reiterates that covered contractors are expected to comply with all requirements set forth in their contracts.  Nevertheless, the Task Force acknowledges that agencies will work with contractors who “are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols.” Good faith compliance may include establishing policies related to the vaccine mandate and relevant safety protocols required by the Task Force’s original Guidance, determining who in the workforce is vaccinated, and taking steps to encourage, educate, and bring unvaccinated employees into compliance.  Absent such efforts, covered contractors who do not take steps to comply may be subject to “significant actions, such as termination of the contract.”