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New Vaccination Mandate Guidance Allows Contractors a “Limited Period” To Address Employees Refusing To Become Vaccinated

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Agencies Advised Not to Terminate Contractors Who are “Working in Good Faith and Encounter Challenges”; More States Sue to Enjoin EO 14042

On November 1, 2021, the Biden administration’s Safer Federal Workforce Task Force issued new Frequently Asked Questions (“FAQs”) for federal contractors subject to Executive Order No. 14042 (“EO 14042”) on Ensuring Adequate COVID Safety Protocols for Federal Contractors. Although styled as FAQs, today’s issuance is binding direction for contractors that have agreed to the deviation contract clauses issued to implement EO 14042 (FAR 52.223-99, DFARS 252.223-7999, etc.), as those clauses specifically require compliance with “all guidance, including guidance conveyed through Frequently Asked Questions, as amended.” The new FAQs come as more states file or join lawsuits against the federal government to enjoin implementation of EO 14042 and the Task Force’s guidance. The new FAQs follow statements on October 27, 2021 by Jeff Zients, the White House Coronavirus Response Coordinator, that the December 8 vaccination deadline in the Task Force’s prior guidance is not a “cliff,” and that the White House does not expect contractors to immediately terminate employees who refuse to become vaccinated by December 8.

One of the questions addressed by the new FAQs is: “What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?” The answer to that question leaves it to the contractor to “determine the appropriate means of enforcement,” and suggests that a contractor in that situation may apply “its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.” The FAQs encourage contractors to consider the process being used by federal agencies in this situation, which is:

“to utilize an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance. Guidance for Federal agencies is that employees should not be placed on administrative leave while the agency is pursuing an adverse action for refusal to be vaccinated but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites.”

The foregoing Task Force’s answer appears to presuppose procedures that most contractors are not obligated to provide for at-will employees. Regardless, the answer appears to allow an unvaccinated covered contractor employee without an accommodation to continue working on a covered contract for a “limited period” while that employee is being counseled in an attempt to avoid termination. The FAQs provide no detail on how long that limited period can last. The FAQs do require that, during this period, the employee must follow all workplace safety protocols for individuals who are not fully vaccinated (e.g., those who have received accommodations). The FAQs remind contractors that agencies may deny such employees entry to a federal workplace, consistent with the agency’s workplace safety protocols.

The new FAQs also address the question, “What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?” The answer to this question states in part, “Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.” The White House expanded on this answer during a briefing later this afternoon, stating that contracts should not be terminated if the contractor is making a good faith effort to backfill positions that became vacant as a result of the vaccination mandate.

The new FAQs also provide the following guidance:

  • An unvaccinated covered contractor employee can begin work on a covered contract or at a covered contractor workplace while the contractor is continuing to review requests for accommodation. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated (e.g., those who have received accommodations). Based on the Task Force’s prior guidance, these protocols generally involve masking and physical distancing.
  • Individual federal agencies will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a federal workplace. In addition to masking, physical distancing, and testing protocols, the new FAQs allow agencies to impose heightened safety protocols when the agency determines such protocols are required. The new FAQs also allow agencies to determine that no safety protocol other than vaccination is adequate in some instances, and that covered contractor employees who are not fully vaccinated are unable to perform the work. The new FAQs emphasize that “[s]uch circumstances do not relieve the contractor from meeting all contractual requirements,” raising the specter of termination for default if a contractor working on-site at a federal facility cannot provide enough vaccinated personnel to fulfill all contract requirements.
  • Contractors “should generally” notify their contracting officers when one of their employees who works onsite at a federal workplace has received an accommodation to the requirement to be fully vaccinated.
  • Employees of a corporate affiliate of a covered contractor are covered contractor employees if they perform work at a covered contractor workplace. Workplaces that are owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor are covered contractor workplaces if any covered contractor employee is likely to be present at that workplace. This is so even if the corporate affiliate would not otherwise meet the definition of a covered contractor. The new FAQs adopt the definition of “affiliate” from FAR 2.101 and the SBA’s rules.

In addition to the lawsuit filed by Florida on Thursday, at least eleven states have filed complaints seeking to enjoin implementation of EO 14042 and the Task Force’s guidance. On October 29, 2021, two separate lawsuits were filed – one by the State of Texas, in Texas federal court, and another filed by ten different states in Missouri federal court (states including Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota and Wyoming). The lawsuits seek a litany of relief (including injunctions and declarations) against the enforcement of EO 14042, the Task Force guidance, the FAR Council guidance and issued deviation clause, and the OMB’s conclusion that the Task Force’s guidance should be enforced, arguing as applicable that the foregoing are unconstitutional, were issued without proper administrative procedure, and/or constitute an overstep of authority.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.