Federal contractor employees must be fully vaccinated against Covid-19 by Dec. 8 unless they’re granted a legal accommodation, under new White House guidance released Friday.
The guidance from the Safer Federal Workforce Task Force—which also includes masking and physical distancing requirements—was required under President
Biden’s order was part of a suite of executive mandates compelling government employees and millions of health-care workers to receive a vaccine, while also directing the U.S. Labor Department’s Occupational Safety and Health Administration to develop an emergency rule for businesses with 100 or more employees to do the same or require weekly testing.
Biden issued the edicts in response to stagnating vaccination rates among the U.S. population as well as the rise of the delta variant of the virus.
The contractor vaccine mandate also will apply to employees who work remotely from home. This provision “can complicate identifying who is subject to the requirements,” said Craig Smith, an attorney with Wiley Rein LLP in Washington who counsels contractors.
Workers with a disability or a sincerely held religious belief may be entitled to an accommodation that would exempt them from the inoculation requirement, according to the guidance.
But the guidance doesn’t specify the repercussions for federal contractors that don’t satisfy the government mandates. Penalties for violations of other laws can include contract suspension or debarment.
“It really is unclear from the terms of the executive order what the consequence for noncompliance are, and how actions addressing that noncompliance will be initiated,” said Alissa Horvitz of Roffman Horvitz PLC in McLean, Va., who represents federal contractors.
The guidance clarifies that the White House’s mandate generally applies to businesses that enter into, extend, or renew contracts on or after Nov. 14 to provide services to the government. Contracts solicited and entered after Oct. 15 may also be covered.
Biden’s order doesn’t apply to businesses with contracts valued below the “simplified acquisition threshold,” which is generally set at $250,000, or subcontractors that provide only products.
However, the guidance doesn’t “directly address the avalanche of coverage questions my clients have been asking,” said Christopher Wilkinson, a former U.S. Labor Department attorney who now counsels employers at Perkins Coie LLP in Washington.
“These threshold questions will continue to muddy the path forward for many companies,” he said.
Smith raised similar concerns, saying the guidance encourages businesses to apply the requirements to contracts excluded from coverage.
“So for contracts such as those for products, or that are under the simplified acquisition threshold, it’s unclear which (if any) will incorporate the EO’s requirements—and thus whether employees performing on or in connection with those contracts will be subject to vaccination requirements,” he said. “That adds uncertainty to decisions on where to focus attention in ensuring compliance with the vaccination and other requirements.”
Guy Brenner, a partner with Proskauer Rose LLP in Washington who consults contractors, said companies shouldn’t assume they’re excluded, noting-that employers will have to consistently check the guidance for updates.
If an agency has “an urgent, mission-critical need” for an unvaccinated contractor employee to start on a contract or at a covered workplace, the agency head may approve an exception with the understanding that the employee must be fully vaccinated within 60 days of beginning the work.
“The covered contractor must further ensure that such employees comply with masking and physical distancing requirements for not fully vaccinated individuals in covered workplaces prior to being fully vaccinated,” according to the guidance.
Some fully vaccinated workers will still have to wear masks indoors, depending on the levels of transmission in the workers’ area, but they won’t have to physically distance, the guidance makes clear. Workers who aren’t fully vaccinated must wear a mask indoors and in some outdoor settings, and “should maintain a distance of at least six feet from others at all times.”
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