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U.S. Contractors Grapple With Biden Vaccine Proof or Test Order

Aug. 2, 2021, 10:15 AM

Businesses with federal contracts are scrambling to comply with a White House order requiring their employees to prove they’re vaccinated against Covid-19 or regularly undergo testing if they work at government locations, while also anticipating a wider mandate from President Joe Biden.

The president is “directing his team to take steps to apply similar standards to all federal contractors,” and encouraging “employers across the private sector to follow this strong model,” according to a White House fact sheet outlining the July 29 order, which also applies to federal workers. The administration’s push comes as the delta variant spreads and companies weigh vaccine mandates in the wake of tapering inoculation rates.

Federal contractors employ about 25% of the U.S. workforce, operating in a wide range of industries, from information technology and banking to legal services, construction, and manufacturing. Employment attorneys who advise them said Biden’s order bifurcates federal contractor workers into those who are onsite and those who aren’t, which creates logistical hurdles.

“The implementation of this is going to be very complicated, and I think it’s going to take longer to roll out perhaps than the order or his announcement foresees,” said Stephanie Rapp-Tully, a partner with Tully Rinckey PLLC, who represents workers in litigation.

Lawyers already are bracing for what a broader Biden requirement would mean in practice.

David Fortney, a co-founder of Fortney & Scott LLC, a firm that counsels federal contractors on compliance matters, predicts Biden will use every “tool in the tool chest” to encourage workers to get vaccinated.

“Are the more wholesome requirements going to come on? It wouldn’t surprise me,” he said.

Tale of Two Workers

Some federal contractors, including Alphabet Inc.'s Google, already require employee vaccines.

For others that don’t—or haven’t implemented requirements to show proof of vaccination or submit to additional Covid testing—it’ll be challenging to keep track of employees who work at government sites, attorneys said.

“All employers—including federal contractors—are navigating increasing complexity during the pandemic regarding workplace safety and that can look very different by industry, job and location,” said Kristin Jones Pierre, a management-side partner with Faegre Drinker Biddle & Reath LLP.

In creating two unique subsets of employees, the order subjects only one to heightened Covid-19 safety protocols.

“I think it’s easier if you have contractors who are routinely going on site to a federal property, but what if it’s not regularly scheduled?” said Laura Mitchell, a principal in Jackson Lewis P.C.’s Denver office, where she consults employers.

Mitchell identified certain building maintenance workers, like elevator mechanics, as an example of federal contractor employees who might not be consistently onsite, but others who would appear on government property more regularly could include IT consultants and food service providers.

Regular testing adds another layer of complexity.

“Are they getting tested in the federal building? Who’s doing the testing? Are they keeping track of the testing?” asked Rapp-Tully. “All of these questions are pretty substantial for how this actually plays out.”

White House Predictions

If the White House opts to fully mandate vaccinations across all federal contractors, prominent companies like Cisco Systems Inc. , Verizon Communications Inc. , and Dell Technologies Inc. presumably would have to comply.

“My interpretation is that federal contractors should anticipate an executive order requiring similar safety protocols for their employees,” said Jones Pierre.

Critical details, like timing and scope, remain unknown.

“There are many open questions about whether the administration can, and how it would, impose such a requirement on federal contractors,” said Mickey Silberman, an attorney who also represents federal contractors in employment matters. “So it is advisable for a contractor to make employee vaccine decisions that are best for their organization, rather than in anticipation of a possible legal requirement imposed by the Administration.”

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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