Federal Vaccine Mandates: The Changing Landscape

By: G. Scott Walters Partner, Jacob W. Scott Partner, Jeanne M. Harrison Associate, Alexander Gorelik Associate, Smith, Currie & Hancock LLP.

            In September 2021, the White House’s Safer Federal Workforce Task Force issued its initial guidance defining measures that entities must take to comply with the President’s COVID-19 vaccination mandate for federal contractors and subcontractors.    Shortly after the Task Force issued this guidance, the Federal Acquisition Regulatory Council (“FAR Council”) issued requirements for a deviation clause for federal agencies to implement the federal vaccine mandate on covered federal contracts.  Around the same time in September  the President directed the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (“ETS”) applicable to all United States companies employing 100 or more employees.  Over the last couple of weeks there have been fairly significant developments with both of these federal vaccine mandates.  Both of these mandates continue to impact construction industry participants, including federal government and private sector contractors and subcontractors.  This alert identifies key developments concerning both mandates.

The Federal Contractor Vaccine Mandate

October 21, 2021 Task Force Guidance Updates

On October 21, 2021 the Task Force released new information addressing when contractors may allow their employees to delay obtaining vaccinations.  The additional guidance, provided as part of the Task Force’s Frequently Asked Questions (FAQs), makes clear that authorized delays for employee vaccinations will be rare exceptions. The FAQs note, for example, that if a covered contractor’s employee requests an accommodation that a contractor denies, the covered contractor “should establish a timeline for a covered contractor employee whose request for an accommodation is denied to promptly become fully vaccinated.” (emphasis added). The FAQs do not offer any specifics as to what the Task Force considers “prompt” vaccination or the time appropriate for evaluating an employee’s request for an accommodation. But any contractor that delays its enforcement of those requirements risks facing challenges from the government on whether it enforced those measures in good faith.

That said, the Task Force’s responses to these new FAQs offer some examples of circumstances that may justify granting a covered contractor employee an extension to the current vaccination deadlines. These examples include:

• Vaccination of people with known current SARS-CoV-2 infection should be delayed until the person has recovered from the acute illness (if the person had symptoms), and they have met criteria to discontinue isolation.

• People with a history of multisystem inflammatory syndrome in adults (MIS-A) should consider delaying vaccination until they have recovered from their illness and for 90 days after the date of diagnosis of MIS-A.

• Vaccination should be delayed for 90 days after receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment.
• Whenever possible, mRNA COVID-19 vaccination doses (including the primary series and an additional dose) or the single dose Johnson and Johnson (J&J)/Janssen vaccine should be completed at least two weeks before initiation or resumption of immunosuppressive therapies, but timing of COVID-19 vaccination should take into consideration current or planned immunosuppressive therapies and optimization of both the patient’s medical condition and response to vaccine. A patient’s clinical team is best positioned to determine the degree of immune compromise and appropriate timing of vaccination.

• People who develop myocarditis or pericarditis after a dose of an mRNA COVID-19 vaccine should delay receiving a subsequent dose. People who choose to receive a subsequent dose should wait until myocarditis has completely resolved.

• People who have a history of myocarditis or pericarditis unrelated to mRNA COVID-19 vaccination may receive any currently FDA-approved or FDA-authorized COVID-19 vaccine after the episode of myocarditis or pericarditis has completely resolved. This includes resolution of symptoms attributed to myocarditis or pericarditis, as well as no evidence of ongoing heart inflammation or sequelae as determined by the person’s clinical team, which may include a cardiologist, and special testing to assess cardiac recovery.

Notably, the current FAQs, and responses, add that “this is not an exhaustive list of the circumstances in which clinical considerations may recommend in favor of delaying vaccination.” The FAQs further specify the measures that contractors must take with any employees that may not be able to obtain immediate vaccinations because of such “clinical considerations”:

• In circumstances in which delay pursuant to these clinical considerations means that a covered contractor employee is not fully vaccinated as of the vaccination requirement implementation date of December 8, 2021 or at the time that covered contractor employees begin work on a covered contract or at a covered workplace, the covered contractor should require that individual to become fully vaccinated promptly after clinical considerations no longer recommend delay.

• During the period in which vaccination is delayed, a covered contractor employee must follow applicable masking and physical distancing protocols for not fully vaccinated individuals. There may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a Federal workplace, or the location of their work at a Federal workplace, requires heightened safety protocols. In some cases, an agency may determine that the nature of a covered contractor employee’s responsibilities at a Federal workplace are such that no safety protocol other than vaccination is adequate—in that case, covered contractor employees who are not fully vaccinated would be unable to perform the requisite work at the Federal workplace. Such circumstances do not relieve the contractor from meeting all contractual requirements.

The FAQs explain too that, in some limited circumstances, covered contractors can offer their employees extensions to deadlines for vaccinations “[e]ven in cases where the covered contractor employee does not meet the legal definition of ‘disability’ to be entitled to an accommodation,” where the covered contractors do so, based upon other medical considerations. The FAQs seem to suggest that covered contractors can do so, however, only after receiving documentation of “medical reasons that may not qualify as a disability but that necessitate a delay in vaccination can grant a covered contractor employee an extension[.]” The FAQs explain that covered contractors, in such cases, “should specify, consistent with the nature of the medical necessity, by what date the contractor employee must be fully vaccinated. Covered contractors should [also] take note that an individual’s medical need should be considered on a case-by-case basis, including any medical evaluation that addresses the individual’s particular circumstance.”

The additional guidance also provides further information on some specific circumstances, including how the vaccination mandate applies to any pregnant employees or those who are trying to become pregnant or might become pregnant in the future and individuals with allergic reactions to the vaccines or their components.

November 1, 2021 Task Force Guidance Updates

            On November 1, 2021 the Task Force released some answers to pressing questions regarding enforcement and compliance with the new vaccination requirements for federal contractors through the FAQs incorporated into the Task Force Guidance. Those FAQs illuminate how contractors and agencies should handle pending accommodation requests, non-compliant employees and contractors, and the reach of the regulations related to affiliated entities. This new information hints at a slightly more gracious enforcement of the regulations in advance of the new deadline. The goal appears to be ensuring that contractors are working in good faith to meet the requirements, rather than insisting on strict compliance following the due date for full vaccination.

Contract Work While in the Process of Reviewing Accommodation Requests.  The Task Force Guidance notes that not all accommodation requests need to be resolved before a covered contractor begins work on a covered contract or at a covered workplace. Where a contractor remains in the process of reviewing an accommodation request, the contractor may start on a covered contract provided the employee requesting an accommodation follows workplace safety protocols for employees who are not fully vaccinated while the request is pending, including masking and social distancing in covered contractor workplaces. Unvaccinated contractor employees on federal worksites must also follow testing protocols. The FAQs reserve for the federal agencies the right to require heightened safety protocols or even vaccination in certain circumstances where necessary.

Covered Contractors and Compliance.  While the FAQs note that “[c]overed contractors are expected to comply with all requirements set forth in their contract,” the FAQs do not recommend immediate and indiscriminate termination for failure to immediately satisfy the vaccination requirement. Where a covered contractor working in good faith to comply with the requirements but encounters challenges, the agency should work with the contractor “to address these challenges.” Notably, the FAQs do not give any examples of challenges faced by the contractor that would call for the agency to adopt that collaborative approach. “If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.”

Covered Employees and Compliance.  When an employee of a covered contractor refuses vaccination and does not seek or is not granted an accommodation, “the contractor should determine the appropriate means of enforcement.” While this determination does not absolve covered contractors from abiding by the Task Force Guidance, it does offer each contractor the flexibility and discretion with how best to deal with any unvaccinated employees. The FAQs suggest covered contractors begin with their “usual processes for enforcement of workplace policies.” The FAQs go on to recommend policies in use by federal agencies to encourage compliance, beginning with a “limited period of counseling and education,” moving to additional discipline if necessary, and only moving to removal “after continued noncompliance.” Like workers for whom accommodations are pending or have been granted, non-compliant workers must follow all workplace safety protocols, and still may be denied entry into certain federal workplaces.

Affiliated Contractors and Employees.  The FAQs also clarify that employees of business concerns that are affiliated with federal contractors are subject to these regulations, even if those affiliates are not working on a federal contract, if employees share a covered workspace with a covered contractor. Similarly, any workplace owned by an affiliate of a covered contractor is subject to these regulations where “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.”

November 10, 2021 Task Force Guidance Revision

            On November 10, 2021 the Acting Director of the President’s Office of Management and Budget (OMB) issued amended Task Force Guidance intended to supersede the previous Task Force Guidance issued in September.  A key difference here is that the federal contractor compliance deadline has now been extended to January 18, 2022. 

FAQs regarding the Task Force Guidance are still applicable.  The Guidance has replaced listed FAQs with a hyperlink to the Task Force’s FAQ site, which contains current FAQs and answers.  There is one new FAQ.  The Guidance now provides sample signage for safety protocols for covered contractors to post at covered contractor workplaces.  Separate sample signage covers protocol for both areas of high or substantial levels of community transmission as well as low or moderate areas of community transmission.  Several others FAQ responses have been updated to reflect the new compliance deadline.

The OSHA ETS

On November 4, 2021, the Biden administration released the U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) COVID-19 Vaccination and Testing; Emergency Temporary Standard (the “COVID-19 ETS”). The 490-page COVID-19 ETS was published in the Federal Register on November 5, 2021 and will affect all private companies with 100 or more employees at any time this standard is in effect. COVID-19 ETS highlights include the following:

• Employers with 100 or more employees have until January 4, 2022 to ensure that all employees are fully vaccinated with two shots of either Moderna or Pfizer-BioNTech vaccine, or one shot of the Johnson & Johnson vaccine. Full vaccination is defined as two weeks post final vaccine dose. After that date, any unvaccinated employee must provide weekly negative COVID-19 test results, and the employer is not responsible for any testing fees. Unvaccinated employees must also wear masks at the workplace.

• In determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of employees’ vaccination status or where they perform their work. Part-time employees count towards the company total, but independent contractors do not.

• On a typical multi-employer worksite, such as a construction site, each company represented – the host employer, the general contractor, and each subcontractor – would only need to count its own employees, and the host employer and general contractor would not need to count the total number of workers at each site.

• Even if a particular employer is covered by the standard, specific employees may be exempt. For example, the COVID-19 ETS is not applicable to employees who work exclusively outdoors. The COVID-19 ETS, using the construction industry as an example, notes that workplaces characterized as “outdoors” may in fact involve significant time spent indoors. On a construction site, “workers inside a partially complete structure are not truly outdoors, and some individuals on a construction site may spend significant amounts of time in a construction trailer where other individuals are present. Workers at outdoor locations may also routinely share work vehicles.”

• The COVID-19 ETS sets forth two exceptions to the standard. Specifically, the COVID-19 ETS does not apply:

1. To workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.
2. In settings where any employee provides healthcare services or healthcare support services while he or she is covered by the requirements of 29 CFR 1910.502 pertaining to the healthcare industry. Healthcare vaccination mandate requirements are set forth in a separate ETS issued earlier in 2021.

• The COVID-19 ETS is intended to pre-empt (or foreclose) all state or local government laws that contradict this OSHA rule.

• The COVID-19 ETS does allow for testing option (weekly testing), along with mask requirements, for employees who are not vaccinated.  This differs from the federal contractor mandate which is a true vaccine mandate.

Key Takeaways

Federal Vaccine Mandate:  The updates to the information about the Task Force Guidance reflect the dynamic nature of the vaccination requirements for federal contractors and subcontractors stemming from the President’s order. We encourage contractors to consult with competent HR professionals and employment counsel concerning this new guidance and to continue monitoring the Task Force’s website for any updates, and remember that the contract clauses imposing these requirements order them to “comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance” of their contracts. Because such revisions may reflect new obligations for covered contractors in their federal work, it is critically important that contractors stay current as to what those obligations are and take the measures they can to mitigate the risk and cost impact of any “uncertainties” in these requirements.

COVID-19 ETS:  The OSHA ETS, while allowing for COVID-19 testing in lieu of vaccination, will have broader application yet will still impact construction companies employing 100 or more persons.  Many state and local government agencies and industry organizations have asserted challenges to this temporary rule and, as of this writing, at least one stay of enforcement of the rule has been granted.  The outcome of review petitions and litigation is uncertain.  But if the rule survives, the current compliance deadlines will remain in place.  Prudent employers, including construction industry employers, need to know and understand the rule and its implementation and compliance requirements.

Smith Currie provides comprehensive legal services to all parts of the construction industry across the nation. Smith Currie lawyers have decades of demonstrated success representing construction and federal government contracting clients “From the Ground Up,” including procurement matters, contract formation and negotiation, project administration, claims prosecution and, when necessary, in litigation and other forms of dispute resolution.

The  views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.