Biden Administration Updates Guidance and Extends Deadline for Vaccine Compliance for Government Contractors

On November 4, 2021, the Biden Administration extended the deadline for employers covered by the federal contractor vaccine mandate in Executive Order 14042. The administration apparently recognized that many federal contractors have been struggling to meet the original December 8, 2021 deadline to have covered employees fully vaccinated and to make determinations on religious and medical exemption requests. This extension means covered contractor employees will need to have their final vaccination dose by January 4, 2022, in order to be considered “fully vaccinated” on January 18, 2022.

On November 1 and November 10, 2021, the Biden Administration also updated its Frequently Asked Questions (FAQs) and Task Force guidance (guidance) to clarify which companies are covered “affiliates” and to allow good faith efforts for compliance. These FAQs are binding on federal contractors who have agreed to the deviation contract clauses issued to implement the Executive Order. This article supplements our first alert on federal contractor vaccine mandates.

Legal Challenges

At least seventeen states, including Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Kentucky, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, and Wyoming, have sued to enjoin the enforcement of the Executive Order, the guidance, and the issued deviation clause. These states offer multiple arguments for enjoining these rules, including that they unconstitutionally infringe on state powers, overstep the federal executive branch’s authority, and fail to follow proper administrative procedure. As of this writing, no court has enjoined the vaccine mandate for covered federal government contractors; thus, covered contractors should continue to take steps now to comply with the Executive Order unless a court enjoins the mandate.

Corporate Affiliates Defined

Many contractors have questioned whether the Executive Order covers their corporate affiliates. The FAQs clarify that “business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.” Indicia of control include but are not limited to:

• interlocking management or ownership,
• identity of interests among family members,
• shared facilities and equipment, or
• common use of employees.

More broadly, employees of corporate affiliates of a contractor are considered covered contract employees if they perform work at a covered contractor workplace. Workplaces that are owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor are covered contractor workplaces if any covered contractor employee is “likely” to be present at that work place, even if the corporate affiliate does not otherwise meet the definition of a covered contractor.

Procedures While Religious and Medical Exemption Requests Are Pending

Perhaps recognizing the tight deadlines and significant numbers of religious and medical exemption requests some employers have received, the White House has given contractors some breathing room to review exemption requests. Unvaccinated covered contractor employees may begin work on a covered contract or at a covered contractor workplace while the contractor is continuing to review requests for accommodation. While those accommodation requests are pending, the requesting employee must follow workplace safety protocols for individuals who are not fully vaccinated.

Safety Protocols Employees Must Follow When They Have Been Granted an Accommodation

The FAQs direct contractors to notify their contracting officers when one of their employees who works onsite at a federal workplace has received a religious or medical exemption from the requirement to be fully vaccinated. The federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a federal workplace. A “federal workplace” means any place, site, installation, building, room, or facility in which any federal executive department or agency conducts official business, or is within an executive department or agency’s jurisdiction, custody, or control.

Notably, an agency may determine that the nature of a covered contractor employee’s responsibilities are such that no safety protocol other than vaccination is adequate. If such an event occurs, the covered contractor employee will not be able to perform the requisite work at the federal workplace, but this does not relieve the contractor from meeting all contractual requirements.

Vaccination Status of Visitors to Covered Contractor Workplaces

The November 10 FAQs instruct covered contractors to post signage at entrances to covered contractor workplaces providing information on safety protocols, including protocols for masking and social distancing. The FAQs provide sample signage, which are provided for both high-substantial and low-moderate transmission areas.

Circumstances that the CDC Recommends Delaying Vaccination for COVID-19

The FAQs now list several circumstances where the CDC recommends delaying vaccination for COVID-19 and allowing for delay of vaccination for individuals with certain medical conditions. These circumstances include delays for individuals with known current COVID-19 infections; those with a history of multisystem inflammatory syndrome, myocarditis or pericarditis; those who are undergoing immunosuppressive therapies; and those who have received monoclonal antibodies or convalescent plasma for COVID-19 treatment. The FAQs provide recommended time frames for vaccination for patients with these medical conditions.

Also, the FAQs note that COVID-19 vaccination is recommended for people who are trying to become pregnant, are pregnant, are breastfeeding, or may try to become pregnant in the future, but they allow delay of vaccination depending on an employee’s particular medical circumstances.

Penalties for Noncompliance and Good Faith Efforts

The FAQs also clarify the penalties for noncompliance and offer some guidance for covered contractors who are making good faith efforts to comply with the mandate. The FAQs state where covered contractors are working in good faith to comply with COVID-19 workplace safety protocols and encounter challenges, the agency contracting officer should work with the contractors to address these challenges. By contrast, where a covered contractor is not taking steps to comply, the agency should take “significant actions,” including terminating the contract.

The FAQs allow the covered contractor to determine the appropriate means of enforcement with respect to its employee at a covered contractor workplace who refuses to be vaccinated and has not received an accommodation. It references the guidance for federal agencies on employee discipline but does not explicitly require covered employers to follow it. Guidance for federal agencies includes utilizing an enforcement policy that encourages compliance through a limited period of counseling and education, followed by additional disciplinary measures if necessary. The guidance makes clear, however, that employees who refuse to be vaccinated and who are not granted a religious or medical exemption cannot continue to work on a covered contract.

Broad Implementation Is Encouraged

The November 10 update to the guidance encourages covered contractors to include similar vaccination requirements in their non-covered contracts. For instance, the guidance states that covered contractors are “strongly encouraged” to include similar vaccination requirements in their non-covered contracts and agreements with non-covered contractors whose employees perform work at covered contractor workplaces but do not work on or in connection with a federal contract. This includes contracts and agreements related to the provision of food services, onsite security, or groundskeeping services at covered contractor workplaces.

Contractor Vaccination Requirement Is Separate from OSHA’s New Emergency Temporary Standard

Notably, OSHA issued an Emergency Temporary Standard (ETS) applying to private employers with 100 or more employees, which is the topic of an article available here. OSHA clarified that the ETS does not apply to “workplaces” that are covered by the federal contractor vaccination requirement, so employers will not have to track multiple vaccination requirements for the same employees. The term “covered workplace” means a location controlled by a covered contractor at which 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. A covered contractor workplace does not include a covered contractor employee’s residence.

For up-to-date guidance on how these developments impact your organization, and for counseling on other timely pandemic-related management issues, please contact your local Quarles & Brady attorney or:

• Sarah Belger: (202) 372-9511 / sarah.belger@quarles.com
• Hans Riede: (202) 372-9529 / hans.riede@quarles.com