Executive Order 14042, issued September 9, 2021, requires covered federal contractors to adopt COVID-19 safety protocols promulgated in “guidance” issued by the Safer Federal Workforce Task Force (Task Force). The Task Force guidance, issued September 24, 2021, requires mandatory vaccination for large swathes of the federal contractor workforce, subject only to legally required medical and religious exemptions, starting as early as December 8, 2021 (see our previous discussion of the Task Force guidance here). Since releasing the guidance, the Task Force has issued numerous FAQs about the scope and application of the contractor vaccine mandate. The most recent FAQs, which address issues related to vaccine accommodation requests, the consequences of noncompliance, application of the mandate to employees of corporate affiliates, and vaccine verification, are summarized below.
Deadline flexibility and other guidance related to vaccine accommodation requests
The FAQs provide that pending requests for medical or religious accommodations from the vaccine mandate need not be resolved by the December 8 deadline, or such other time that the mandate first becomes applicable to a covered contractor employee. While their accommodation requests remain pending, covered contractor employees must follow the Task Force’s mask and social distancing protocols for individuals who are not fully vaccinated.
Contractors should notify their contracting officers when an employee who works onsite at a Federal workplace receives an accommodation from the vaccine mandate. Contractor employees working at Federal worksites are subject to the contracting agency’s COVID-19 protocols regardless of any accommodation granted by the contractor. In most circumstances, this usually means masking, distancing, and testing, but agencies may determine, based on the employee’s job responsibilities and/or workplace, that “heightened safety protocols” apply or that “no safety protocol other than vaccination is adequate.”
How to handle employee noncompliance
The FAQs also provide flexibility to contractors with respect to handling employees who are not fully vaccinated by December 8 (or, if later, the first day such employee becomes covered by the mandate). Specifically, contractors are not required to immediately terminate such employees or place them on unpaid leave. Rather, the FAQs state that contractors may utilize their normal processes for enforcing workplace rules, which may include relevant employee handbook policies or provisions of collective bargaining agreements. Contractors may, for example, choose to follow the enforcement model promulgated by the Task Force for use by Federal agencies, which encourages compliance and addresses noncompliance via a limited period of education or counseling, followed by discipline if needed, with removal occurring “only after continued noncompliance.”
Consequences for Noncompliant Contractors
Regarding contractor noncompliance, the FAQs state that when contractors work “in good faith” to comply with the vaccine mandate or other Task Force protocols but encounter compliance challenges, the agency should “work with” the contractor to address the challenges. However, if a covered contractor fails to take good faith steps to comply, “significant actions,” such as contract termination, may follow.
Coverage of corporate affiliates
Under the Task Force guidance, a “covered contractor” is a prime contractor or subcontractor “who is a party to a covered contract.” The FAQs address situations when employees of corporate affiliates that do not hold a covered contract are nonetheless subject to the Task Force protocols by virtue of their relationship with the contract holder.
The FAQs provide that businesses, organizations, or individuals are considered to be affiliates of each other if they directly or indirectly control or have the power to control each other, or if a third party directly or indirectly controls or has the power to control both. Factors relevant to affiliate status include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, and common use of employees.
Employees of a corporate affiliate of a covered contractor, when the affiliate is not itself a covered contractor, become subject to the Task Force requirements, including the vaccine mandate, when they perform work at a “covered contractor workplace.” The FAQs expand the Task Force’s definition of “covered contractor workplace” to mean not only a workplace controlled by the covered contractor—but also a workplace controlled by the affiliate—at which any employee of the covered contractor “working on or in connection with a covered contract is likely to be present” during the period of contract performance.
As discussed in our prior post, the Task force defines working “on” or “in connection with” a covered contract, and “covered contractor workplace,” very broadly. As a result, the Task Force guidance will likely sweep in many employees of corporate affiliates that do not themselves hold covered contracts if there is interaction among the entities’ workers in their respective workplaces.
Acceptable vaccine proof
Our prior post describes the types of documents that contractor employees may show or submit to demonstrate proof of COVID-19 vaccination. The FAQs clarify that contractors need not ask employees for vaccination documentation if they can access such verification through another means consistent with applicable privacy laws. For example, a contractor may rely on documentation previously provided to it by the employee.
Takeaways for Contractor Employers
Contractors should continue to closely monitor the Task Force website and Hogan Lovells publications for additional developments. Contractors should also watch for further guidance on how to simultaneously comply with the federal contractor vaccine mandate, the soon-to-be-released Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (which is expected to require vaccination or testing for employees of employers with 100 or more employees), or a vaccine mandate expected to be issued by the Centers for Medicare & Medicaid Services (CMS) (which is expected to apply to staff in Medicare- and Medicaid-certified facilities).
If you have questions about how federal vaccine requirements apply to your workplace or how to implement them, please contact an author of this post or the Hogan Lovells lawyer with whom you regularly work.
Authored by William Ferreira, George Ingham, Mike Mason, Joy Sturm, Allison Pugsley, Michael Sheimer, Stacy Hadeka, Amy Folsom Kett, Zachary Siegel, Lauren Olmsted, and Shannon Finnegan*.
*Shannon Finnegan, an author of this post is a Law Clerk in the New York office.
