Updates to the US Federal Contractor Vaccine Mandate—But Will They Matter?

Developments continue with the vaccine mandate for federal contractors ushered in per Executive Order No. 14042. This order, through implementing clauses, requires federal contractors to verify that their employees working on or in connection with covered contracts are vaccinated unless they qualify for a medical or religious exemption. Employees must be “fully vaccinated” by December 8, 2021. The clauses require covered contractors to comply with guidance issued by the Safer Federal Workforce Task Force (“Guidance”) issued on September 24, 2021, and subject to periodic update. (For additional details, please see our prior Legal Updates from September 17, September 27 and October 4).

The Safer Federal Workforce Task Force issued updated guidance on November 1, 2021. The revised guidance consisted of updates to the Frequently Asked Questions (“FAQs”). The FAQs now also address such matters as:

• What to do if an employee refuses to be vaccinated: The FAQ suggests following the model recommended for federal agencies, which is to encourage compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary with removal only after continued noncompliance. (What constitutes “continued noncompliance” is not defined, i.e., what constitutes material noncompliance under a company’s policies or how long noncompliance be tolerated by an otherwise valued employee.)
• What agencies should do if covered contractors do not comply with the Guidance: The FAQ states that where a covered contractor is “working in good faith and encounters challenges with compliance with COVID-19 workplace safety protocols,” the agency contracting officer should work with the contractor to address the challenges. It then states that if a covered contractor is not taking steps to comply, the agency should take “significant actions, such as termination of the contract.”
• Whether accommodation requests must be resolved by the time an employee begins work at a covered workplace: The FAQ states that a covered contractor may still be reviewing requests for accommodation as of the time that covered employees begin work on a covered contract or at a covered workplace; while accommodation requests are pending, the contractor must require a covered employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Guidance, such as masking and physical distancing.

In addition, multiple lawsuits have been filed to contest the vaccine mandate. Approximately 20 states have filed or joined in other state lawsuits to block the mandate. The states are contesting the Biden administration’s authority to address public health considerations through an executive order. The outcome of such litigation may affect the timing for implementation of the vaccine mandate as well as if it ultimately is permitted to take full effect. However, if a company already has agreed by contract to comply, it is not clear that this litigation would have any effect on that obligation.