We’ve written extensively about the looming COVID-19 vaccination requirement for federal contractors, and small businesses have been scrambling to comply.
Now—mercifully—the federal government has provided needed clarification about the COVID-19 vaccination requirements.
Let’s take a look.
As will be familiar to those businesses that applied for SBA’s Paycheck Protection Program, the government’s COVID-19 Guidance is evolving through a series of questions and answers, all posed by the Task Force. For this reason, we recommend that contractors review the Guidance for updates regularly.
Three updates are particularly important.
First, the government addresses perhaps the most common question we receive about the COVID-19 vaccine mandate: what happens if an employee is not vaccinated by the December 8, 2021 deadline?
Here, the government grants some leeway to contractors. If a covered contractor employee refuses to be vaccinated, the “covered contractor should determine the appropriate means of enforcement.” This may include the contractor’s “usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.”
This clarification is helpful. It means that covered contractor employees might not face a strict December 8 employment termination date if they refuse to be vaccinated; rather, the contractor gets some discretion in implementing a gradual approach to enforcement.
The government provides the helpful example of how it treats its own employees, under its corresponding vaccination requirement. Federal employees who refuse to be vaccinated first face a limited period of counseling and education, designed to encourage compliance. If they still refuse, additional disciplinary measures—eventually resulting in employment termination—may result.
Again, I recommend that contractors speak with local employment counsel before taking any adverse actions against personnel based on the mandate.
Second, the government states that covered contractor personnel who are not vaccinated—either because of a pending or granted request for exemption, or their nonrefusal—should comply with all workplace safety protocols for individuals who are not fully vaccinated.
While in a federal workplace, these protocols will generally be dictated by the agency. And, agencies may deny access to persons who do not follow them. To comply with these protocol, contractors “should generally notify their contracting officers when one of their employees who works onsite at a Federal workplace has received an exception to the requirement to be fully vaccinated.”
Third, and finally, the updated Guidance starts to give whiff of the potential penalties if contractors do not meet the requirements:
Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.
Working towards compliance with the mandate is therefore crucial. Though agencies are instructed to work with contractors making good faith efforts to meet the requirements, this mandate will nonetheless be implemented in contracts. Failing to meet it could result in termination.
The updated guidance to federal contractors helps define the contours of the COVID-19 vaccination mandate. If you have questions about compliance, please give us a call.