Today, the White House announced that the deadline for the federal contractor vaccine mandate is extended to Jan. 4, 2022. This change was made to align with the vaccine mandate issued today by the Centers for Medicare and Medicaid Services (CMS), as well as the long-awaited and much-anticipated testing requirements in the Emergency Temporary Standard from the Occupational Safety and Health Administration (OSHA). (We will have more information on both of those requirements as it becomes available.) Last week, 10 states filed suit in Missouri federal court challenging President Biden’s authority to issue the federal contractor vaccine mandate. More legal challenges are sure to follow the release of the OSHA and CMS requirements.
In terms of the federal contractor vaccine mandate, nothing changes for the covered contractors while the lawsuit moves forward, but the Safer Federal Workforce Task Force did issue updated guidance on Nov. 1 to address some of the lingering concerns and questions. Below are the highlights. The full text of the updates can be found here (opens a new window).
The deadline for federal contractors to be fully vaccinated is Jan. 4, 2022
A covered contractor does not need to re-collect employee vaccination cards if it previously obtained copies
There is no deadline by which covered contractors must review accommodation requests, but unvaccinated employees should follow appropriate workplace safety protocols and the appropriate agency should be notified of the presence of unvaccinated employees at a federal work site
Covered contractors may need to offer temporary accommodations to contractor employees who need to delay being vaccinated
Corporate affiliates of a covered contractor may fall within the scope of the vaccine mandate depending on interrelated management and ownership
Covered contractor employees who refuse to be vaccinated and do not seek an accommodation will not face automatic termination, but should be counseled and educated, and addressed through other disciplinary measures before being “removed” from the workplace
Vaccine deadline extended to Jan. 4, 2022
The White House announced today that “to make it easy” for employers to comply with vaccine and testing requirements, the deadline for the federal contractor mandate is now extended to Jan. 4, 2022, as this is the deadline by which employers covered by the CMS vaccine mandate and the OSHA ETS testing requirements are required to comply. All three components of the Biden Plan are designed to get more unvaccinated American workers vaccinated now align.
Vaccine proof, accommodations and safety protocols
The Task Force clarified that a covered contractor does not need to require its employees to show or provide documentation of vaccination if the covered contractor already has existing documentation of a covered employee’s vaccination status through a prior employee vaccination program. Further, the covered contractor may verify vaccination status through a state’s immunization database. Regardless of the method, covered contractors need to be mindful of applicable privacy laws.
The Task Force confirmed that while requests for accommodation are pending, covered contractor employees may begin work on a covered contract or work at a covered contractor workplace so long as they follow specified workplace safety protocols (opens a new window) including masking and physical distancing. In the event an exception to the vaccine mandate is approved, covered contractor employees who are not fully vaccinated will generally need to follow those same protocols.
The Task Force advises that covered contractors should notify their contracting officers when an employee working on-site at a federal workplace has received an accommodation and is not fully vaccinated so they can assess their safety measures. Note that if an agency determines the covered contractor employees’ responsibilities at a federal workplace render anything short of vaccination as inadequate, the employees who are not fully vaccinated would not be able to perform work at the federal workplace. Even so, the covered contractor is still expected to complete the contract. While the deadline to be vaccinated is next month, there is no set deadline by which covered contractors must complete the accommodation process. Rather, the updated guidance states that in the event an accommodation request is denied, a covered contractor should establish a timeline for the impacted employee to be fully vaccinated.
Even in the absence of a disability, the guidance recognizes that a covered contractor employee may be entitled to delay vaccination. In the event an employee asks to delay being vaccinated, a covered contractor should review the employee’s individual medical needs. The Task Force identifies the following as some potential reasons for delaying vaccination:
A current COVID-19 infection
A history of multisystem inflammatory syndrome in adults (MIS-A) until recovered from their illness and for 90 days after the date of diagnosis of MIS-A
Receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment (wait 90 days)
Undergoing immunosuppressive therapies
Developing myocarditis or pericarditis after a dose of an mRNA COVID-19 vaccine or having a history of myocarditis or pericarditis unrelated to mRNA COVID-19 vaccination
Lockton comment: Note that while a current COVID-19 infection may delay a covered contractor employee from getting vaccinated, the updated guidance makes it clear that a prior COVID-19 infection or a recent antibody test will not exempt an individual from the vaccine requirement.
In the event a covered contractor employee’s vaccination is delayed for a medical reason other than a disability (such as those listed above), the guidance recommends that the covered contractor require that individual to become fully vaccinated promptly after the condition resulting in the delay is resolved. The guidance also reiterates the CDC recommendation that people who are pregnant, breastfeeding, trying to become pregnant now or trying to become pregnant in the future get the COVID-19 vaccine. However, the Task Force recognizes that a covered contractor employee may delay vaccination based on the employee’s particular medical circumstances.
Lockton comment: Based on the Task Force updates, covered contractor employees may have a variety of reasons for delaying vaccination. Covered contractors will need to review these accommodation requests on an individualized basis – just as they would ordinarily under the ADA. It is apparent that covered contractors will be addressing “temporary” accommodation requests by employees seeking to delay vaccination as well as requests for accommodation from the vaccine mandate in the entirety based on either a disability or a sincerely held religious belief.
Scope of the workplace when affiliates are involved
Employees of a corporate affiliate of a covered contractor may be subject to the vaccine mandate as well. The Task Force advises that “business concerns, organizations, or individuals” are affiliates if, directly or indirectly, either one controls or has the power to control the other, or a third party controls or has the power to control both. Evidence of control includes interlocking management or ownership, identity of interest among family members, shared facilities and equipment, or common use of employees.
A corporate affiliate with an employee performing work at an affiliate’s work site, which is a covered contractor work site, will expose the affiliate to the vaccine mandate. Similarly, if any employee of a covered contractor working on or in connection with a covered contract is likely to be present during performance of the contract at a workplace controlled by a corporate affiliate of that covered contractor, that workplace will be a covered contractor workplace.
Lockton comment: For a corporate affiliate (who is not otherwise a covered federal contractor) to avoid the vaccine mandate, it should avoid contact with the workplace and employees of an affiliate that is a covered contractor. Otherwise, if there is overlap, its employees will fall within the scope of the federal contractor mandate based on its affiliation with the covered federal contractor.
Covered contractors have some flexibility with compliance
The Task Force advises that it is up to the covered contractor to determine the “appropriate means of enforcement” of the vaccine mandate and suggests it be enforced using the covered contractor’s “usual processes” for enforcing workplace policies. The guidance notes that one “model for enforcement” being used by federal agencies is to encourage compliance through a limited period of counseling and education, followed by additional disciplinary measures if necessary. They note that “removal” occurs after continued noncompliance. The guidance further states that federal agencies are advised not to place employees on administrative leave while addressing the refusal but require the unvaccinated employee to follow safety protocols.
Lockton comment: At this point, there is no express guidance or requirement that a covered contractor terminate employees who refuse to be vaccinated and have not sought an accommodation by the Jan. 4 deadline. Rather, using the federal “model for enforcement,” a covered contractor can counsel and educate unvaccinated employees for a period of time and follow up with other disciplinary measures (perhaps a verbal warning, written warning, etc.) before reaching the point of “removal.” Given that the Task Force does not indicate “removal” is the equivalent of termination, a leave of absence may be appropriate at that time. More clarification is likely to come.
Finally, while covered contractors navigate these complexities, the Task Force advises that as long as a contractor is making a good faith attempt to address challenges associated with the vaccine mandate, the agency contracting officer is expected to work with the contractor to address the issues. On the other hand, if the covered contractor is not taking steps to comply with the mandate, action up to and including termination of the contract may be taken.
Covered contractors now have a bit more information about the vaccine mandate and additional time as the Jan. 4, 2022, deadline approaches. These updates demonstrate that covered employers do have some flexibility in terms of ensuring compliance. Our original alert can be found here (opens a new window).
We recognize that you need information on the OSHA ETS testing requirements and the CMS vaccine mandate. We will bring those details to you as they become available.
Not legal advice: Nothing in this alert should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's HR Compliance Consulting group are not privileged under the attorney-client privilege.