- Federal Contractor FAQ: Additional Answers to your Vaccine Mandate Compliance Questions – read now
- Important Federal Contractor Mandatory Vaccine Updates – read now
Federal Contractor FAQ: Additional Answers to your Vaccine Mandate Compliance Questions
Last week, our Employment & Labor and Government Contracts Groups sat down for a Federal Contractor FAQ in partnership with Business Benefits Group. They answered commonly asked questions regarding the federal contractor vaccine mandate (Executive Order 14042), including qualifying exemptions, the accommodations process, information tracking, and more.
You had some lingering questions that needed to be addressed. We’ve compiled a list of these questions and responded to them, including inquiries like:
- Do contract vehicles with no active work fall under the requirement?
- Is there a requirement to share statuses with our government client?
- 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?
- 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?
- 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?
- If I am a billable federal contractor that is 100% remote, am I required to be vaccinated?
- Does the testing have to be Paid Time?
Important Federal Contractor Mandatory Vaccine Updates
The Practical Reality of the Vaccine Mandate Is Recognized by the Federal Government
Just like the PPP regulations were ever-evolving in the early stages of its rollout, so is the guidance on enforcement of the mandatory vaccine for federal contractor employees and subcontractors. Questions about enforcement and consequence are the ones we receive most often (followed closely by accommodation requests). New updates and guidance can be found at www.saferfederalworkforce.gov/faq/co which sheds a little light on enforcement and how far the Federal Government is willing to pursue achievement of this mandate. Overall, provided the contractor is working in good faith toward compliance, they should be safe, however, ignoring the requirement could result in termination.
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.
Almost daily we are asked what to do if an employee does not seek or qualify for an exemption and just refuses to be vaccinated. The guidance does not answer the question of the ultimate penalty but does suggest that the employer has some leeway in attempting to obtain compliance before suspending an employee. The guidance gives the employer more latitude in determining the means and method of enforcement including the usual processes for enforcement of workplace policies, but it also explains the model used by the Federal Government for its employees suggesting a softer more persuasive approach may be acceptable.
One model for enforcement among employees with respect to non-compliance with a vaccination requirement is that being followed by Federal agencies. Guidance for Federal agencies 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.
This certainly suggests the deadline of December 8 is not as hard a point in time as the original Executive Order appeared to require. However, contractors must still ensure that the recalcitrant employee is still following all workplace safety protocols for individuals who are not fully vaccinated and unvaccinated employees may be denied entry to a Federal workplace, consistent with the agency’s workplace safety protocols.
Regardless of how the contractor approaches the situation, willful ignorance is unacceptable and good faith efforts toward compliance must be demonstrated. This could include adoption of employer policies, performing surveys of employees, obtaining educational information about the vaccine and exploring all accommodations necessary.
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.”
Although this assumption may provide some prophylactic protection, should the government ask the prime contractor for certification of compliance and the prime contractor seeks this same certification from its subcontractors who refuse to provide, the situation could get more sticky. We suggest that all prime contractors ensure clear guidance and expectations of the obligations of subcontractors and work with them to obtain compliance.
If you continue to have questions or stumble through enforcement, feel free to reach out to us.
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