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10.28.21   |   COVID-19, Insights

The Federal Contractors and Subcontractors Vaccine and Mask Mandate

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While private businesses are still waiting for OSHA to issue its regulations relating to the Biden Administration’s vaccine mandate for companies with 100 or more employees, and healthcare facilities are waiting on similar regulations from The Centers for Medicare and Medicaid Services, The Safer Federal Task Force has separately issued its guidance specific to businesses that work on federal contracts and subcontracts.

That Guidance, entitled COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, which can be found at https://www.saferfederalworkforce.gov/contractors/, is a vaccine and mask mandate. It operates through a new contractual provision between a federal agency and a contractor that requires the contractor to comply with the Guidance, its updates, and the answers to its Frequently Asked Questions.

Contracts that were signed before the Guidance came out will not have the requisite contractual provision, so there will be no vaccine or mask mandates pursuant to those contracts, unless and until an extension or option is exercised, at which point the federal agency will add the provision to the contract. (Of course, federally-owned locations and worksites are likely to have masking, physical distancing, and other safety requirements independent of the Guidance, so those safety protocols would still have to be followed regardless of whether there is a clause in the contract requiring them to be followed.)

For contracts signed after the Guidance was issued that do contain the provision, there are four major requirements:

1. All of the contractor’s U.S.-based employees, regardless of whether the employee is working on or in connection with the federal contract, receive all doses of a COVID-19 vaccine (unless they have an approved medical/disability-based or religious exemption) by November 24, 2021. After December 8, 2021, that deadline is changed to two weeks before the first day of the period of performance on a contract.

(This requirement in the Guidance is likely to be the source of confusion for contractors as the Guidance is unclear as to what triggers this “after” December 8, 2021 deadline. It could be referring to contracts awarded after December 8, 2021. But if that is the case, then it specifies no deadline for contracts awarded between November 24, 2021, and December 8, 2021. Or, it could mean that if an employee is not fully vaccinated by December 8, 2021, then they have until two weeks before the first day of the period of performance of the contract to receive all doses instead. But if that is the case, then it could, in some instances, render the November 24, 2021 deadline moot. We expect to see some updated Frequently Asked Questions on this topic that may resolve this confusion.)

2. That all of the contractor’s employees follow masking and physical distancing guidance at the contractor’s own U.S. facilities and worksites (unless they have an approved medical/disability-based or religious exemption).

3. That the contractor appoint a COVID-19 Workplace Safety Coordinator responsible for ensuring compliance with the Guidance; and

4. That the contractor include the provision in its contracts with subcontractors, and that those subcontractors include the provision in its contracts with sub-subcontractors, and so on down the line.

There are NO monetary fines or penalties under the provision or the Guidance for failure to comply with the Guidance. However, employees who are not in compliance and do not have an approved exemption will not be permitted to work on or in connection with the federal contract in any capacity. Moreover, since the requirement to comply is contractual, general laws applicable to breach of contract would still apply.

Finally, the Guidance does not specify what a contractor is to do with an employee who cannot be brought into compliance with the Guidance (either because that employee willfully refuses to get vaccinated without an approved exemption or because no reasonable accommodation can be made that would allow an unvaccinated employee with a medical/disability or religious exception to continue to work on or in connection with the federal contract.) In Ohio, it is up to the contractor whether to terminate that employee, find other non-federal contract work in complete isolation for that employee to do, or put that employee on paid or unpaid leave.

If you are an employer with questions about this mandate, please contact your Critchfield attorney.

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