The Safer Federal Workplace Task Force (Task Force) recently issued additional Q&A’s that seemingly take a softer approach to compliance with the contractor vaccine mandate, indicating contracting officers are to “work with,” rather than punish contractors, in an effort to address challenges such as employees refusing to get vaccinated. Other answers in the Q&A further expand the mandate’s coverage to affiliates in ways that, while well-intentioned, may increase growing opposition to the already incredibly broad diktat.
For those reasons, unless and until the mandate is reversed by the administration or stopped by a federal court, which, as we will discuss in another post, now seems to be a real possibility, contractors subject to the contract provision should continue working toward getting “covered contractor employees” vaccinated by December 8 and processing requests for medical and religious accommodations. But it does suggest that the administration belatedly realizes that the vaccine mandate could cause very significant supply chain disruptions if strictly enforced.
The New Q&As
In the new Q&A’s issued on November 1, the Task Force clarifies several points that provide welcome flexibility for contractors. They also confirm that contractors working in good faith toward compliance may not be subject to punishment for failing to get 100% of their workforce vaccinated. But in other Q&As, the Task Force continues its incredibly broad implementation of the mandate.
Additional Time to Process Accommodation Requests
First, in two new Q&As under the “Vaccination and Safety Protocols” section, the Task Force helpfully clarifies that accommodation requests do not need to be processed prior to when covered contractor employees begin working on a covered contractor or at a covered workplace. Instead, employees who have pending accommodation requests must comply with the requirements for individuals who are not fully vaccinated, i.e., masking and distancing.
However, this does not mean that those employees will be permitted to work at all federal workplaces. Another new Q&A explains that federal agencies will determine workplace safety protocols for those who are not fully vaccinated, and while for the most part that will be masking, distancing, and testing, there may be cases in which “no safety protocol other than vaccination is appropriate.”
Compliance a Matter of Good Faith Effort?
Many contractors have asked what they are supposed to do if an employee who is not entitled to an accommodation refuses to get vaccinated. Some have held that those covered contractor employees must be terminated as being vaccinated is a key job requirement. Others, rightfully concerned about their ability to replace skilled employees in an extremely tight labor market, are doing their best to keep those employees on staff while complying with the mandate to the best of their ability. Now, there appears to be additional support for contractors in the latter category.
Under the “Compliance” heading, two new Q&As clarify that contractors can use their “usual process for enforcement of workplace policies” to press employees to get vaccinated. The guidance also states that contractors can use the federal approach, “a limited period of counseling and education, followed by additional disciplinary measures if necessary.” Such employees are to be removed only after “continued noncompliance” and should not be placed on administrative leave while adverse action is being pursued; but these employees must comply with safety protocols – masking, distancing and testing, when reporting to federal worksites.
In perhaps the most helpful clarification to date, the Task Force explains that agency contracting officers should work with contractors that are “working in good faith and encounter challenges with compliance” with the vaccination mandate and other workplace safety requirements. This is welcome news for those covered contractors who are becoming increasingly concerned about the potential impact of failing to have all of their covered contractor employees vaccinated by the fast-approaching December 8 deadline. However, it is important to note that the Task Force also explains that contractors who are not taking steps to comply will face “significant actions, such as termination of the contract ….”
The new guidance is not all positive. It also states that agencies may deny employees of covered contractors entry to federal workplaces if they are not vaccinated. Importantly, it does not state that agencies may also deny entry to employees of non-covered contractor entry.
Expanded Coverage to Corporate Affiliates
While the statements regarding additional time to process accommodation requests and support from contracting officers to contractors dealing with challenges such as employees who refuse to get vaccinated are welcome, in two other newly-issued Q&A under the “Scope and Applicability of Task Force Guidance for Federal Contractors,” the Task Force issued clarifications that expand the reach of the mandate significantly.
In one of the new Q&As, the Task Force provides that “an employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.” This conclusion, that an employee of Company 1, which is not subject to the contractor vaccine mandate, should be treated under the mandate as an employee of Company 2, which is subject to the mandate, if he or she is working at Company 2’s workplace, requires an unusual understanding of the word “employee.” It also raises but fails to answer the question of what “performs work at a covered contractor workplace” means. Is one week sufficient to trigger the requirement? One day? One hour?
Another new Q&A states that “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.” Using the example above, this means that if an employee from Company 2 who processes some bills related to that company’s government contracts is likely to go to an office of Company 1, which, again, is not a covered contractor, to assist with commercial invoicing, everyone in that facility is required to be vaccinated because everyone who works at a covered contractor workplace is considered a covered contractor employee.
What Should Contractors Do Now?
Contractors should not interpret the new guidance to mean that they should stop working toward full compliance should the implementing contract provision be included in one of their prime contract or subcontracts. If that is the case, covered contractors should continue working in “good faith” toward compliance as they are still subject to “significant actions, such as termination of the contract,” if they do not.
And for those contractors who have covered contractor employees who work at federal facilities, this flexibility may be irrelevant if agencies prohibit contractor employees subject to the mandate from entering federal facilities until they are fully vaccinated. It is not clear how many federal facilities will take that position. Still, if you have any questions, you should promptly contact your contracting officer to ask what the entry requirements will be as of December 8.