Hey Federal Contractors – There’s Flexibility on that Vaccination Deadline (And Some More Info About Exemptions)

By Fiona W. Ong - Shawe Rosenthal LLP

November 1, 2021

The White House and the Task Force have softened the December 8, 2021 vaccination compliance deadline for federal contractors and subcontractors. (Big sigh of relief). And provided a little more guidance on employees with exemptions at federal worksites.

Those Refusing to Be Vaccinated. As federal contractors and subcontractors undoubtedly know, on September 9, 2021, President Biden issued an Executive Order requiring that certain contracts that are renewed, extended or entered into after October 15, 2021 must contain a clause that mandates contractor/subcontractor compliance with Guidance from the Safer Federal Workforce Task Force. This Guidance (which clarified that new contracts are covered if the solicitation was issued on or after October 15 and they are entered into on or after November 14, 2021) requires all contractor/subcontractor employees at covered locations to be vaccinated by December 8, 2021, subject to legally required exemptions and absent an undue hardship. (The Order and Guidance also encouraged agencies to extend the requirement to contracts that are otherwise not covered, and we are seeing that happen with a vengeance.)

The Guidance left many employers with the belief that they had to either terminate or place on leave any non-compliant employees as of December 8. However, on November 1, 2021, the FAQs for contractors were updated to now provide that if an employee refuses to comply with the vaccination requirement by December 8, 2021, absent an authorized exemption or delay, the employer determines the appropriate means of enforcement. The employer is not necessarily required to terminate the employee as of that date (although they can still choose to do so, or to place the employee on an indefinite leave pending compliance or removal of the vaccination requirement). The FAQs state that employers can rather use their usual process for enforcement of workplace policies, as set forth in a handbook or collective bargaining agreement.

The Task Force also offers the process being followed by the federal agencies as an example that the contractor could choose to follow: a limited period of counseling and education, followed by additional disciplinary measures, thereafter resulting in removal for continued non-compliance.

Notably, the employee may continue working during this process, but must comply with safety protocols for unvaccinated individuals (e.g. masking, distancing, etc.). The Task Force also notes that, during the process in some cases, such unvaccinated individuals may be denied entry to a federal workplace, consistent with that agency’s safety protocols.

Those Employees with Exemptions at Federal Worksites. The FAQs were also updated to address a common question of what to do about those on-site employees receiving religious or medical exemptions from the vaccine requirement. Contractors should notify their contracting officer at the applicable federal agency that one of their employees has received an exemption. The federal agency establishes the safety protocols that the employee must follow while at the federal worksite – which will generally include masking, distancing and testing.  Depending on the circumstances, there may be additional safety protocols. And in some situations, the agency may determine that the unvaccinated employee cannot perform work at the federal worksite, due to the nature of the employee’s responsibilities. (Of course, that doesn’t excuse the contractor from fully complying with the contract requirements).

As always, this is an incredibly fast-moving and every-changing situation. Stay tuned for further updates! (And check out our firm’s extensive COVID-19 FAQs).