UPDATE 1/19/22: Although the United States Supreme Court blocked the Occupational Safety and Health Administration’s vaccine-or-test mandate for large private employers last week, the Court’s decision did not address the federal contractor vaccine mandate. Still, just as many of the federal government’s efforts to require vaccination have faced a slew of legal challenges, so has the federal contractor mandate in the lower courts. The Biden administration is appealing several challenges to the federal contractor mandate across the country. Appeals are ongoing in the Eighth, Fifth, Sixth, and Eleventh Circuits.
The Eighth Circuit will be the fourth and latest appeals court to hear a challenge to the federal contractor vaccine mandate. On January 14, 2022, the federal government filed a notice to appeal a Missouri federal magistrate judge’s decision to sustain a preliminary injunction blocking the mandate. Missouri v. Biden, No. 4:21 CV 1300 DDN, 2021 WL 5998204 (E.D. Mo. Dec. 20, 2021), notice of appeal January 14, 2022.
On January 11, 2022, the federal government filed a notice of appeal in the Fifth Circuit to overturn a Louisiana federal judge’s decision to block the federal contractor mandate. Louisiana v. Biden, No. 21-CV-3867, 2021 WL 5986815 (W.D. La. Dec. 16, 2021), notice of appeal January 11, 2022.
On January 5, 2022 the Sixth Circuit rejected the federal government’s motion to stay the preliminary injunction that blocked the federal contractor mandate in Kentucky, Ohio, and Tennessee (the injunction is discussed below in the article). The Sixth Circuit denied the request to stay the injunction and concluded that “the government is not likely to succeed on appeal.” Kentucky v. Biden, No. 21-6147, 2022 WL 43178, at *4 (6th Cir. Jan. 5, 2022).
On December 17, 2021, the Eleventh Circuit denied the federal government’s request to lift the nationwide injunction against the measure. The Eleventh Circuit found that the Biden administration had failed to demonstrate irreparable harm to the federal government necessary to set aside the injunction. The court set an expedited briefing schedule, requiring the government’s brief by January 3, responses by January 17, and any replies by January 24. See Georgia v. Biden, No. 21-14269, slip op. (11th Cir. Dec. 17, 2021).
The Supreme Court’s January 14 ruling on the OSHA might not affect the federal contractor vaccine mandate, as the Biden administration issued the OSHA mandate and federal contractor mandate under the authority of different federal statutes. For now, it is a waiting game to see how the litigation develops.
UPDATE 12/15/21: On Tuesday, December 7, 2021, a Georgia federal judge blocked the COVID-19 vaccine mandate for federal contractors from going into effect nationwide. The mandate was set to take effect on January 4, 2022, and required covered contractor employees to be fully vaccinated by January 18, 2022. The plaintiffs — seven states, several governors of those states, and various state agencies, including the Board of Regents of the University System of Georgia — argued that President Biden overstepped his authority under the Federal Property and Administrative Services Act.
In his reasoning for blocking the mandate, the Georgia federal judge cited the trade organization Associate Builders and Contractor Inc.’s (“ABC”) motion to join the lawsuit as an intervenor. The judge found that ABC in particular, which has members across the country, has suffered and will continue to suffer an “extreme economic burden” in attempting to comply with the mandate. Thus, the court ruled a nationwide injunction was warranted.
Tuesday’s ruling comes amid numerous challenges to the Executive Order that established the mandate, including an injunction that a Kentucky federal judge issued a week earlier blocking the mandate from going into effect in Kentucky, Ohio, and Tennessee. The latest decision is far broader in scope, as it applies to covered contractor employees nationwide.
The Justice Department is likely to appeal the ruling, although it is unclear what developments will transpire. Check back for updates, and contact your Much attorney should you have any questions.
Companies that enter into new contracts with the federal government or agree to let the federal government exercise an option or extend an existing contract may be subject to new federal contractor vaccine requirements.
Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, mandates COVID-19 vaccines for federal contractors and subcontractors and ensures other workplace safety protocols for these contractor employees. The White House Safer Federal Workforce Task Force released guidance covering the COVID-19 vaccine, mask, and social distancing requirements for federal contractors and subcontractors and issued new FAQs that provide additional clarity on that guidance.
Federal agencies must incorporate the COVID-19 safety requirements in existing contracts awarded before October 15, 2021 when an option is exercised or an extension is made, and in new contracts awarded on or after November 14, 2021. For contracts and solicitations issued between October 15 and November 14, federal agencies must include the requirements in solicitations and are encouraged to include the requirements in contracts awarded during this time. Companies that are not subject to these federal contractor COVID-19 safety requirements, however, may still be subject to the OSHA or CMS vaccine mandate rules.
Covered contractor employees must provide proof of full vaccination against COVID-19 by January 18, 2022, so now is a good time to review the order, guidance, and FAQs and make a plan for implementation to ensure full compliance.
The guidance applies to:
- Contracts for services, construction, or leasehold interest in property
- Services covered by the Service Contract Act
- Concessions contracts under the Service Contract Act
- Procurement contracts for construction covered by the Davis Bacon Act
- Contracts relating to federal property or land offering services to federal employees, their dependents, or the general public
The guidance excludes grants, contracts or contract-like instruments with Indian tribes, contracts with a value equal to or less than the simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. The guidance strongly encourages agencies to incorporate a clause requiring compliance with the guidance into contracts that are not covered.
All covered contractor and subcontractor employees must be fully vaccinated, unless the employee is legally entitled to an accommodation for a disability or sincerely held religious belief. The vaccine requirement applies to full- and part-time employees working remotely on or in connection with a covered contract. Covered contractor employees must provide proof of full vaccination against COVID-19 by January 18, 2022, so employees must receive the last dose by January 4 to meet the deadline. After January 18, covered employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, exercised option, or extended or renewed contract. (This January deadline is a recent change. It replaces the original December deadline and now matches the deadline set forth by OSHA and CMS.)
To prove vaccination status, covered contractors must require that their employees show or provide one of the following documents (or a paper or digital copy such as a photograph, scanned image, or PDF):
- The record of immunization from a health care provider or pharmacy
- The COVID-19 Vaccination Record Card
- Medical records documenting the vaccination
- Immunization records from a public health or state immunization information system
- Any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic site administering the vaccine
In areas of high or substantial transmission, fully vaccinated individuals must wear a mask in public indoor settings (although they may lower their mask briefly for identification purposes to comply with safety and security requirements). In areas of low or moderate transmission, fully vaccinated people generally do not need to wear a mask or physically distance in federal buildings or on federal lands, unless federal, state, local, tribal, or territorial laws, rules, or regulations mandate otherwise. The Safer Federal Workforce also suggests following CDC guidance for mask-wearing and physical distancing in specific settings such as health care, transportation, correctional and detention facilities, and schools. Before being subject to a contractual requirement to be vaccinated, contractors should provide onsite contractor employees with the Certification of Vaccination form when they enter a federal building or federally controlled worksite. Non-fully vaccinated onsite contractor employees, federal employees, and visitors (or those who decline to provide information about their vaccination status) must provide proof of a negative COVID-19 test from no later than the previous three days when in a federal building or federally controlled worksite. Additionally, these individuals who are not fully vaccinated must continue to wear a mask and physically distance in federal buildings and on federal lands.
Contractors must post signage providing information on safety protocols for fully vaccinated and non-fully vaccinated visitors and must also designate an individual to coordinate COVID-19 workplace safety efforts. To help determine proper safety protocols, covered contractors must check the CDC COVID-19 Data Tracker County View website at least weekly to gather community transmission information in all areas where a covered contractor workplace is located. Covered contractors must not reduce safety protocols in a particular area until the level of community transmission in the area remains below a substantial level for at least two consecutive weeks. A “covered contractor workplace” is defined as “a location 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.” The entire building at which a covered contractor employee works is considered a “covered contractor workplace” — unless the contractor can prove that none of its employees in another area of the building will come into contact with a covered contractor employee during the performance of a covered contract.
Addressing Noncompliant Employees
The guidance recommends that federal contractors first follow their usual processes for enforcement of workplace policies, including those addressed in employee handbooks or collective bargaining agreements. The FAQs suggest that federal contractors encourage employees to comply by offering counseling and education, followed by additional disciplinary measures if needed, and only after continued noncompliance should employers terminate an employee. Employers should not place employees on administrative leave while the agency pursues an adverse action against those refusing to be vaccinated but must follow safety protocols for non-fully vaccinated employees when reporting to agency worksites, per the FAQs.
Timeline and Next Steps
Federal agencies must include a clause incorporating the COVID-19 safety requirements in solicitations and contracts for services as follows:
- In existing contracts awarded before October 15, 2021, agencies must incorporate the requirements at the point at which an option is exercised or an extension is made.
- In new contracts awarded on or after November 14, 2021, agencies must incorporate the requirements.
- For contracts and solicitations issued between October 15, 2021, and November 14, 2021, agencies must include the requirements in solicitations and are encouraged (but not required) to include the requirements in contracts awarded during this time period.
Contractors with a federal contract or subcontract incorporating the requirements must flow the requirements down to the next lower-tier subcontractors. Covered contractor employees must provide proof of full vaccination by January 18, 2022. After that date, covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, exercised option, or extended or renewed contract when the clause has been incorporated into the covered contract.
The Executive Order guidance governs over any contrary state or local law or ordinance. States or municipalities may, however, implement more protective workplace safety measures.
Several lawsuits have been filed in federal court seeking to invalidate the Executive Order and guidance. Thus far, one district court judge has blocked the vaccine mandate for federal contractors from going into effect in Kentucky, Ohio, and Tennessee. As of the publication date of this article, the mandate remains in effect in all other states. As always, Much’s Labor & Employment and Construction attorneys are available to help you navigate these requirements and answer any questions you may have.