Guidance does not apply to all contractors or right away to those it does.
President Biden’s Executive Order requiring private firms with more than 100 employees to have all of their staff vaccinated is making its way through the bureaucracy before being approved as an Emergency Temporary Standard by the Occupational Safety and Health Administration (OSHA) (ETS). Meanwhile, the government wasted little time in informing federal contractors and subcontractors about how they should proceed with the initiative. The Safer Government Workforce Task Force published advice on September 24 requiring that certain federal contractor employees be completely vaccinated against COVID-19 by December 8. Although labelling the release a “guide” may generate some misunderstanding, it is important to note that this is a legally binding order, not merely a suggestion.
Following Biden’s announcement and allegations that thousands of teachers and healthcare workers are losing their jobs for refusing to be vaccinated, many of whom already have antibodies or can cite medical reasons provided by their doctors, vaccine requirements have become increasingly contentious. In response to a current dispute that goes to the heart of the mandate, the instruction leaves people who do not want to get vaccinated because they have already had the disease and thus have natural immunity with no option. In fact, prior COVID-19 infection does not exempt an employee from the duty, according to the advice. Only individuals legally entitled to an accommodation due to a handicap or an honestly held religious conviction are exempt. The guidance, on the other hand, doesn’t say how to analyse accommodation requests, simply that an employer who receives one “should review and determine what, if any, accommodation it must offer.”
To further complicate matters, the guidance does not specify how the government intends to implement the obligation or what fines or penalties it will apply. There’s still question about how the Federal Acquisition Regulatory (FAR) Council will incorporate the vaccine, masking, and social distance requirements into contract wording, as well as the actions it’ll take to sanction contractors that break them. This will require a formal regulatory process, which is likely to begin in early October. Then there’s the potential for sanctions if OSHA issues an ETS. On or after Nov. 14, 2021, an employer must enter into certain government contracts or “contract-like instruments” that were described in the President’s Sept. 9 Executive Order, if their contracts achieve or exceed the streamlined acquisition threshold, which is presently set at $250,000.
“Awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications” are the terms used to describe contract-like instruments. Grants, contracts with Native American tribes under the Indian Self-Determination and Education Assistance Act, workers who operate outside the United States, and subcontracts only for the provision of products are all exempt from the vaccine obligation.
What Employers Should Do
According to attorneys Durham, Segal, and Gregston, in addition to enforcing employee vaccination, covered contractors must also implement additional COVID-19 workplace safety measures, such as masking and social distancing regulations, and the designation of COVID-19 safety person staff. Contractors must implement and enforce the Centers for Disease Control and Prevention’s (CDC) masking and physical distancing requirements, which include sector-specific CDC guidance applicable to certain types of settings, such as healthcare, transportation, correctional and detention facilities, and schools.
Because proper safety protocols (such as mask requirements for fully vaccinated employees) can vary depending on the level of community transmission where a workplace is located, the guidance requires contractors to check the CDC’s COVID-19 Data Tracker County View website at least weekly to determine proper workplace safety protocols in all areas where they have a covered contractor workplace. Contractors must also appoint a person or persons to coordinate the guidance’s implementation and compliance at their workplaces, including the guidance’s workplace safety protocols. These persons are also in charge of informing employees and “all other individuals likely to be present at covered contractor workplaces” about workplace safety measures, which includes displaying signage.
Employers should also examine and, if necessary, adjust processes for handling requests for accommodations for impairments and honestly held religious views, according to Turnbull. When implementing these obligations, they should also create methods for complying with confidentiality and privacy protections. Assign a person or people to oversee implementation and compliance, and make plans to train human resource staff and management who will be responsible for putting the standards into action.
Create plans for masking and social distancing for all individuals in workplaces where covered employees work, in accordance with CDC guidance. Other federal and state restrictions, such as the guidelines for contractors operating at federal facilities and the forthcoming OSHA vaccine criteria for firms with 100 or more employees, should be kept in mind. Last but not least, Turnbull advises keeping track of cost increases associated with complying with the order in order to support requests for cost reimbursements or equitable adjustments.