On Nov. 1, the Administration’s Safer Federal Workforce Task Force released updated Frequently Asked Questions (FAQs) regarding the interpretation and implementation of the Task Force’s Guidance for Federal Contractors and Subcontractors. Specifically, the updated FAQs address additional guidance on required vaccination and safety protocols, the scope and applicability of the Task Force’s Guidance, as well as contractor compliance. On Nov. 4, the White House issued a Fact Sheet extending the deadline for when contractor and subcontractor employees under covered government contracts must have their final vaccination dose to Jan. 4, 2022.
Both of these communications are undoubtedly in response to feedback received by the White House and the federal agency contracting community from federal contractors and subcontractors who are challenged by seeking to comply with these new rules while also being able to continue to perform on their contracts. While these communications add some clarity to the situation, many questions remain. We have summarized the new information below.
The most challenging situation, and thus the most frequently asked question to federal contractor counsel, is what actions employers must take with respect to employees who refuse to be vaccinated. The Guidance and prior FAQs left unanswered whether unvaccinated and unaccommodated employees must be put on some form of leave or otherwise removed from employment. The updated FAQs provide some clarity by suggesting that removal is a last resort action and should only be taken after taking mitigating actions such as counseling and education, followed by “additional disciplinary measures.” Importantly, the new FAQs counsel against taking any adverse employment action such as placing an employee on leave until pre-removal processes and proceedings are underway. In any event, any such employees must follow safety protocols while at the covered contract workplace.
One question we have been hearing from the contracting community is whether requests for religious and medical accommodations had to be resolved prior to the vaccination deadline or before allowing an employee to perform on a contract. The updated FAQs allow requesting employees to work on behalf of a federal project so long as the contractor is actively reviewing requests. Such employees will be required to adhere to masking, distancing protocols while waiting for accommodation decisions.
Related to this subject, the updated FAQs provide that covered employees with accommodations must also follow the workplace safety protocols. The FAQs also recommend that contractors notify agencies of these accommodated employees. Importantly, to the extent these employees are working at federal facilities, the federal agencies are permitted to implement heightened protocols or to refuse admittance to these accommodated employees. These agency actions do not relieve contractors or subcontractors from their performance obligations.
One of the more confusing aspects of the Task Force’s prior guidance was the breadth of the applicability to the contractor’s workplace to non-covered contract employees, as well as to contractor affiliates. The Guidance and the prior FAQs did not clearly limit the vaccine mandate to only “covered contract employees” who worked at a covered contract workplace. The updated FAQs would appear to extend the mandate to employees of “affiliated” companies if such employees work at covered contract workplaces without regard to whether they are working on a covered contract or have no contact with covered contract employees. This would seem to imply that even non-covered contract employees at covered contract workplaces must also be vaccinated, although it is still far from clear.
Finally, the updated FAQs reinforce that contractors and subcontractors are required to comply with all contract requirements. The FAQs do encourage contracting officers to work cooperatively with their contractors to address challenges caused by the Task Force Guidelines, which could include loss of key employees and/or increased costs. The FAQs discourage “significant” actions such as default terminations unless the contractor is not working in good faith to comply with the mandates.
As mentioned, the White House has released a fact sheet that moves the deadline for receiving the final dose of a vaccine to Jan. 4, 2022. The fact sheet does not mirror the Task Force Guidance which speaks to a covered contract employee having to be fully vaccinated by the prior deadline of Dec. 8, 2021. This would seem to suggest that the actual deadline for being fully vaccinated is approximately Jan. 18, 2022. As the Task Force Guidance still refers to Dec. 8, 2021, date, we expect the Guidance to be revised to reflect the Fact Sheet.
As always, Clark Hill’s Government Contracting Team will continue to monitor the Task Force and agency actions and will publish further updates as warranted.