This is a continuation of a live FAQ presented in partnership with Business Benefits Group on October 27th. Watch the original webinar here.

1. I have a pregnant employee that does not want to get the vaccine until after she delivers.  Her doctor will not sign a medical exemption.  Can I approve an exemption until after she gives birth?

Response: Medical exemption requests should be supported by documentation from the employee’s medical provider. It may not set a good precedent to accept verbal requests from employees without supporting documentation.

2. I want to make sure I heard you correctly that for now grants are exempted right now?

Response: Correct. Recipients of federal grants are not required to comply with this mandate.

3. Do contract vehicles with no active work fall under the requirement?

Response: Yes, although the reality is that there will be no current covered employees.  Should the contract be activated, those employees will need to comply.

4. I had an employee tell me that asking for the vaccine card was personal information and if a class action lawsuit comes up later, they expect compensation.

Response: If an employer has a vaccine policy, it has the legal right to ask to view the employee’s vaccination card. If a copy of the card is kept by the employer, it is considered medical information and should be maintained in a confidential file.

5. If employee doesn’t meet the deadline date for being fully vaccinated, can we extend it? or do we need to ask for accommodation and start interactive process?

Response: The deadline is imposed by the government. It is not within the federal contractor’s authority to permit an extension to a federal order.  If the employee is seeking an accommodation, the interactive process should begin as soon as possible so a decision is made prior to the deadline.

6. If we have an employee not vaccinated, do we get them weekly tested?

Response: First, if they are working on a contract, they must be vaccinated or have a valid exemption.  Second, the protocols for weekly testing or other safety measures should comply with CDC guidelines and any workplace requirements.

7. What type of language can we use during the recruiting process to indicate the vaccine would be required within 60 days, if not already vaccinated?

Response: The same language for employees should be used for employment candidates when communicating the federal policy.

8. Is there a deadline for approved accommodations?

Response: The express vaccine deadline is December 8^th or when the agency renews your contract and includes this clause.  Beyond this, it is best to engage in an interactive process well before that date so employees have sufficient time to get vaccinated if their accommodations are not granted.

9. What would be considered a sincerely held “practice or observance”?

Response: This is a complicated answer and it’s best to refer to the EEOC’s website for a definition and examples.  Click here: https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_79076346735821610749860135

10. Is there a requirement to share statuses with our government client?

Response: The government’s recent guidance explains that when a covered contractor employee is not vaccinated because a covered contractor has provided the employee with an accommodation, contractors should generally notify their contracting officers when one of their employees who works onsite at a Federal workplace has received an exception to the requirement to be fully vaccinated.  Depending on the protocols for the federal workplace, the employee may not be permitted to enter or may have to undergo different guidelines.

11. Can you have applicants upload to a ATS?

Response: You do not need to maintain copies of vaccine verification documentation.  If it is received, it should be considered a health record and maintained separate from the employee’s file.

12. Do we have to review subcontractor records or can we rely on a clause in the subcontract that the subcontractor has reviewed their employee’s documents?

Response: The new updates remind prime contractors that they must ensure the required clause is incorporated into its first-tier subcontracts.  First-tier subcontractors are then expected to flow the clause down to their lower-tier subcontractors in similar fashion so that accountability for compliance is fully established throughout the Federal contract supply chain.  Once imposed, subcontractors are required to comply.   The most significant revelation is that the guidance permits prime contractors to “assume the subcontractor is complying with the clause . . . unless the prime contractor has credible evidence otherwise.”

13. If employees are not vaccinated how to we track the weekly COVID-19 tests? What are the protocols if they do not do weekly COVID tests? Are home test valid?

Response: Covered contractors and subcontractors must designate a COVID-19 Workplace Safety Coordinator. The designated individual (or individuals) must ensure that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces (e.g., by communicating the required protocols and related policies by email, websites, memoranda, flyers, or other means and posting signage at covered contractor workplaces that sets forth the requirements and workplace safety protocols in a readily understandable manner).

Testing unvaccinated employees may/may not be an accommodation that is permitted by the agency with whom you have a contract. It is best to get guidance from the Contracting Officer on this issue. If testing is permitted, the contractor will need to set up a method to track results of weekly tests through its COVID-19 Workplace Safety Coordinator.

14. For those with approved exceptions, is regular testing required?

Response: Regular testing may/may not be a reasonable accommodation permitted by the federal agency with whom your company contracts.  It will depend on that agency’s rules.

15. Is pregnancy a qualifying medical condition for exemption?

Response: The CDC has recommended that pregnant employees get the COVID-19 vaccine. The pregnant employee should provide documentation from a medical provider if she is seeking an exemption.

16. For some of our prime contractors, they are asking for us (their subcontractors) to provide an affidavit that we will comply with this executive order prior to or by Dec. 8. What are your suggestions for approaching this (any stipulations we should include for protection), and what if we’re not in compliance by that time how does it impact this affidavit (if completed and submitted)?

Response: By law, an affidavit is a written oath or affirmation that the information in the document is true and can be used as evidence in court. If the signor cannot attest to that information, he/she will have to ask themselves whether they want to risk accountability for an inaccurate statement.

17. Are the “Yes” responses to the surveys sufficient as proof as vaccine?

Response: No.

18. If I am the prime contractor and have to attest for everyone on the contract, do I also have to collect info on my subcontractors as well?

Response: If you are making this attestation for your subcontractors, it should be done following your confirmation that your subcontractors are compliant.

19. We’re a Medical Practice who accepts Medicare and Medical Assistance as payment for our patients-  does this federal order pertain to us?

Response:  At this time, all healthcare workers who work for entities receiving payments from Medicare or Medicaid are, by executive order, required to be vaccinated.

20. Do federal contractors have to be fully vaccinated by Dec. 8th, if the clause is not in any of their contracts yet?

Response: The deadline for vaccination is dependent on language in the federal contract which governs your work and whether you or your employees enter federal workplaces where different protocols may be in order.

21. If an employee submits a Religious Accommodation request, how soon does the employer have to respond to the employee with an answer?

Response: In fairness to the employee, the employer should evaluate the request, determine if more information is needed, provide a deadline to the employee, and then make a decision. With all of that information, decisions should generally take no longer than a week. Ultimately, whether the accommodation can be granted will be dependent upon the individual federal agency with whom your company is contracting.

22. If an employee is indirect and works from home, is there a weekly testing requirement?

Response:  If they are indirect and are not likely to come into a workplace where a federal covered contract is being performed, there is no weekly testing requirement.

23. If I am a billable federal contractor that is 100% remote, am I required to be vaccinated?

Response: Yes.

24. Regarding Religious Exemptions, who establishes standards for approval? Does it require supplemental documentation from clergy or pastoral staff?

Response: If the employee’s written request for a religious exemption is not clear or it references a specific clergy member or institution, the employer may request supplemental documentation submission. However, this is not always necessary. See https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_79076346735821610749860135

25. One employee submitted a letter from his physician. Does this mean that employee cannot return to the office?

Response:  Employers are required to engage in an interactive discussion. Following receipt of the medical record, you should discuss what reasonable accommodations are available under the circumstances.

26. Has the government indicated that those who are not vaccinated (granted an exception) cannot be on site?

Response: Whether an unvaccinated federal contractor is permitted on a government worksite will be determined by the individual federal agency.

27. Do you need to see an original vaccination card?  What if your employee only gives you a copy?

Response: Viewing a copy of the vaccination card is acceptable.

28. We work on Federal Contracts and IC contracts. Do our overhead employees, i.e., recruiters, operations people have to be vaccinated? What is when they recruit the contractors are in a different state and our recruiters will never see them live?

Response:  If they are indirect and are not likely to come into a workplace where a federal covered contract is being performed, they do not have to be vaccinated.

29. If an employee has a medical exemption, can’t masking and regular testing be the accommodation to allow an employee be onsite at the federal government?

Response: Whether an unvaccinated federal contractor is permitted on a government worksite will be determined by the individual federal agency.

30. If an employee refuses to be vaccinated, I understand that as the employer I must dismiss that employee by Dec 8 in order to keep my company’s federal contracts. Right? When I dismiss the employee, can that employee have any legal action against the company? Is there an easy defense for the company that doesn’t require a lot of legal back-and-forth?

Response: In this situation, if there is no other reasonable accommodation to make, and there is no contract where you can transfer the unvaccinated employee, termination may be the only option. It is best to have this conversation with your Contracting Officer. Be aware of deadlines based on your specific federal contract.

31. Does the testing have to be Paid Time?

Response: That is up to the employer.  If the inclusion of the executive order is a unilateral change to the contract, it is a compensable change under the contract. 

32. Can we decide what type of testing/how frequent to require for people where we grant an accommodation? Or has there been specific guidance about that yet?

Response: No specific guidance has been provided yet.  This will also be dependent on the work done and the specific federal agency with whom your company contracts.

33. If regular testing is an approved accommodation, will the employer be required to pay for the testing costs?

Response: The government has provided no specific guidance on who is required to pay for testing if it is an approved accommodation.

34. For exemptions with testing requirements, should these be enforced if we have remote employees, or should these requirements with the accommodation take effect when employees are going on site only? (Are we able to make that distinction, with everyone still remote, testing requirements do not seem appropriate yet)

Response:  Accommodations should be unique to the person and the job they are completing.

35. What if the federal contract I support says that they do not accept religious accommodation?  Is that an automatic denial of the request?

Response: It is best to get this information in writing which would support your decision to deny the request because it would create an “undue hardship” on the employer.

36. This is the message that one of our employees received from NIH EDI. “As a contractor, you will have different reporting requirements regarding the vaccination mandate. We don’t anticipate processing any contractor requests for exemption (temporary or permanent) through this office (EDI). Please reach out to your contract company for guidance on how they are processing exemption requests.”

Response: Thank you for sharing this statement. This confirms that the individual agencies are placing the burden on the contractors to handle exemption requests.

37. Can you request a religious leader sign the exemption request?

Response: This is not necessarily required. See https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_79076346735821610749860135

38. You’re closer to this than I am. What is your expectation for someone or some group suing successfully by Dec 8 that this requirement will be postponed or ruled unconstitutional?

Response: There has been a lot of speculation that federal employees, who also have a deadline of December 8^th to be fully vaccinated, will test your question by bringing legal claims. Their deadline to get the first vaccine is November 8^th.

39. So if the candidate is seeking employment but states that they have an exemption, what stage of the selection process do they need to provide that paperwork? If it is after the December 8th deadline, would they have to provide that before an interview?

Response: It is recommended that employees go through the full interview process to first determine whether the candidate is qualified for the position. Following a conditional offer of employment, if the candidate makes a request for an accommodation, the interactive process should begin.

40. We have many employees who absolutely do not want to get the vaccine. Will we need to terminate employees if all other options are exhausted?

Response: If there are no other contracts on which your unvaccinated employees can work and there are no accommodations available, termination is ultimately a business decision for your company to make.

41. It seems like they are passing over proven immunity as a medical exemption – is that correct? What about an employee with blood tests every 30 days showing active IgG and IgM antibodies, with a medical risk to vaccinate an already immune human body, but it seems like this is never considered an exemption, so what is a medical exemption?

Response: Federal guidance states as follows: “Covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated.”

42. Does a company need to put a clause in their contracts if they have a subcontractor working on a federal contract for them?

Response: Federal guidance states as follows: “The prime contractor is responsible for ensuring that the required clause is incorporated into its first-tier subcontracts in accordance with the implementation schedule set forth in section 6 of the order. When the clause is incorporated into a subcontract, a subcontractor is required to comply with this Guidance and the workplace safety protocols detailed herein. Additionally, first-tier subcontractors are expected to flow the clause down to their lower-tier subcontractors in similar fashion so that accountability for compliance is fully established throughout the Federal contract supply chain for covered subcontractor employees and workplaces at all tiers through application of the clause.”

Watch the FAQ Session