The White House has published new guidance about the COVID-19 vaccine mandate for federal contractors, laying out details like deadlines and how contractors can enforce the rule with employees who refuse to get vaccinated.
On Sept. 9, President Joe Biden signed an executive order that requires all federal contractors to be vaccinated and follow masking and social distancing policies by Dec. 8. The Safer Federal Workforce Task Force published an FAQ about the new requirements on its website detailing some of the flexibility contractors have in regards to the mandate.
Among the issues addressed is the Dec. 8 deadline. According to the rules, contractors should be “working in good faith” to fully vaccinate their workers by then, but provide some leeway if vaccinations are delayed due to “clinical considerations” like workers currently infected with COVID. Contractor employees who previously had COVID are required to be vaccinated.
According to the guidelines, if federal contractors aren’t taking steps to comply with the vaccine mandate, actions like termination of a contract should be taken by the federal agency contracting with them.
Federal contractors must include the required clause into its first-tier subcontracts so that subcontractors are also required to comply with the mandate. These first-tier subcontractors must then flow the clause down to lower-tier subcontractors.
Federal vs. State and Local Laws
The guidelines make clear that the rules apply in states or localities that seek to prohibit vaccine mandate compliance. Texas Gov. Greg Abbott, for instance, issued an executive order banning any entity in Texas from enforcing a vaccine mandate.
“These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance,” the guidelines state. “Additionally, nothing in the Task Force Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under the Task Force Guidance.”
Discipline for Non-Vaccinated Employees
For contractor employees who refuse to be vaccinated, the rules state a covered contractor should “determine the appropriate means of enforcement with respect to its employee,” giving contractors some latitude when it comes to non-vaccinated workers.
“This may include the covered contractor using its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements,” the guidelines state.
Federal agencies have the ability to bar contractor employees who refuse to be vaccinated from entering a federal workplace.
Religious and Disability Exemptions
The federal government is letting contractors determine when an employee requires accommodations for a disability (like medical conditions) or sincerely held religious beliefs that prevent them from being vaccinated or wearing a mask.
These accommodation requests do not need to be resolved by the time the contractor begins working on a federal contract, but the contractor must ensure those employees are following safety protocols while waiting to resolve the exemptions.
Contractors can grant employees an extension to a vaccination deadline based on other medical considerations that don’t necessarily meet the legal definition of "disability," though the contractor must receive documented medical reasons necessitating the delay.
Large Private Employer Mandates
The vaccine mandate for federal contractors is more stringent than the rule for employers with 100 or more employees, which is expected to be published this week. These employers must vaccinate their workforce, but unlike federal contractors, have the option of non-vaccinated employees undergoing weekly testing.
The Construction Industry Safety Coalition, made up of 26 industry associations including the National Roofing Contractors Association, sent a letter to OSHA listing its concerns about creating an emergency temporary standard (ETS) to enforce the vaccine mandate.
The coalition said the ETS could have “significant implications” on the construction industry, such as worsening the labor shortage and the economic impact of employers required to provide paid time off on top of potentially paying for weekly testing.