Task Force Signals Flexibility On Contractor Vaccination Mandate In New FAQs

Federal authorities contractors and subcontractors have been scrambling for weeks to attempt to digest and implement the COVID-19 security measures issued by the Safer Federal Workforce Task Force (the “Task Force”) within the wake of the Biden Administration’s Government Order 14042, Making certain Ample COVID Security Protocols for Federal Contractors.  Our prior evaluation of the Task Force’s Tips can be found right here, here, and here.  On November 1, 2021, the Task Force issued extra guidance on some key questions with which contractors have been grappling.

As beforehand reported, amongst different issues, the Task Force’s Tips require contractors to have their workers who work on or in reference to coated contracts, and people who work with them in contractor services, vaccinated by December 8, 2021.  Because the Tips had been issued, authorities businesses have been issuing contract modification notices and incorporating the brand new necessities into current contracts. Concurrently, contractors have been making an attempt to find out find out how to adjust to the December 8, 2021 deadline and what to do with workers who won’t be vaccinated by that date or who refuse to be vaccinated.

The Task Force’s November 1, 2021 steerage suggests the federal authorities doesn’t view December 8, 2021 as an absolute deadline, however reasonably as an aspirational one – supplied that contractors are making “good faith” makes an attempt to conform.  That being mentioned, absent good religion efforts, businesses are directed to think about contractual treatments.  Particularly, in a brand new FAQ, the Task Force supplies:

Coated contractors are anticipated to adjust to all necessities set forth of their contract.  The place coated contractors are working in good religion and encounter challenges with compliance with COVID-19 office security protocols, the company contracting officer ought to work with them to deal with these challenges.  If a coated contractor isn’t taking steps to conform, important actions, similar to termination of the contract, must be taken.

That is according to remarks made at an October 27, 2021 press briefing by Jeff Zients, the White Home Coronavirus Response Coordinator.  Particularly, Mr. Zients acknowledged:

The opposite piece of that is that vaccination necessities for federal staff and contractors — there are nonetheless weeks till we attain these deadlines. And it’s essential to keep in mind that these deadlines should not cliffs. The federal employee deadline is the twenty second of November, and the federal contractor deadline isn’t till December [8th].

However even as soon as we hit these deadlines, we anticipate federal businesses and contractors will comply with their normal HR processes and that, for any of the in all probability comparatively small % of workers that aren’t in compliance, they’ll undergo training, counseling, lodging, after which enforcement.

So, these processes play out throughout weeks, not days. And so, to be clear, we’re creating flexibility throughout the system. We’re providing folks a number of alternatives to get vaccinated. There may be not a cliff right here.

And the aim, I feel, most significantly, is to get folks vaccinated and guarded, to not punish them. So, we don’t anticipate any disruptions.

Additional, the Task Force acknowledges addressing lodging requests might take time and should not have to be accomplished earlier than December 8, 2021.  In one other FAQ, the Task Force explains:

The coated contractor should be reviewing requests for lodging as of the time that coated contractor workers start work on a coated contract or at a coated office.  Whereas lodging requests are pending, the coated contractor should require a coated contractor worker with a pending lodging request to comply with office security protocols for people who should not totally vaccinated as specified within the Task Force Steerage for Federal Contractors and Subcontractors.

The Task Force additionally supplied steerage for the way contractors ought to deal with workers who refuse to get vaccinated for causes apart from spiritual beliefs or incapacity/medical lodging.  The brand new FAQ supplies that contractors “should determine the appropriate means of enforcement with respect to [such] employees,” which “may include … using its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.”  It additional means that contractors think about the federal authorities’s strategy to such worker resistance, which “encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary.  Removal occurs only after continued noncompliance.”

The brand new publication additionally supplies some readability round what constitutes a “covered contractor workplace.”  The Tips outline “covered contractor workplace,” as one which is “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.”  All workers who work at a coated contractor office are topic to the Tips’ vaccine, masking, and social distancing necessities. The FAQs addressed the “control” facet of the definition, and whether or not a office managed by a contractor’s affiliate generally is a “covered contractor workplace.”  The FAQs present that “[i]f 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 at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.”  In flip, the FAQ states 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.”

These FAQs present some useful and welcome steerage for contractors combating find out how to adjust to the Tips.  We’ll proceed to report on new developments.

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