Albert B. Krachman and Brooke T. Iley
Do not be surprised if, before the end of 2021, the federal government begins requiring contractors to certify or represent that their employees have received COVID vaccinations. The federal government has long conditioned contract awards on contractor compliance with emerging social policy mandates. This practice dates backs to the 1960s, when collateral social policy clauses began appearing in federal contracts. The National Emergency created by COVID-19 would appear ripe for a similar federal government action in federal contracting.
Several factors are converging in the United States which signal the potential for a COVID vaccine Certification or Representation. First, the supply issue should be mostly resolved by June 30, 2021. The Biden administration has committed to make enough vaccines available for every adult in the country by the end of May 2021. Second, the administration has been extremely active in making procurement law changes to conform to its policy objectives. Crafting an Executive Order on COVID Vaccines for federal contractor employees is clearly within the administration’s wheelhouse and target zone. Third, as reported in the March 8, 2021, Wall Street Journal, the largest employers in the country, across all sectors, are already engaged in large scale efforts to vaccinate their own employees. Fourth, while the law in this area is still evolving, the prevailing view is that, with certain exceptions, private employers are legally permitted to mandate their employees receive COVID vaccinations as a condition of continuing employment, subject to a variety of considerations related to employee legal, medical, and workplace accommodations. Finally, the federal government might find a federal contractor vaccine mandate a helpful leverage point in the evolving conflict with those states choosing to disregard COVID protections.
Any number of contract devices could be utilized to effect a federal policy encouraging or requiring federal contractor employees to obtain vaccinations. The Federal Acquisition Regulations (“FAR”) could be amended to include a Certification of Employee COVID Vaccinations. This could require an offeror to certify, to the best of its knowledge and belief, that all non-exempt employees have received COVID vaccinations. Alternatively, a FAR clause could prohibit contracting with entities that fail to adopt and administer companywide vaccination programs. A FAR clause could also be modeled on the Drug Free Workplace Clause, FAR 52.223-6, requiring disclosures of employees not in compliance, and imposing sanctions on the contractor for non-compliance, including default, suspension, or debarment.
Promulgation or adoption of a vaccine certification requirement would not be without controversy. The program would need to include exceptions recognized by the latest EEOC guidance for persons with disabilities, religious practices, state law conflicts, and others. Differing views on the certification may very well exist within the Office of Federal Procurement Policy, the FAR Council, OMB, the Department of Labor, Federal Employee Unions, and other stakeholders. However, the Biden administration is laser-focused on corralling COVID, and given the administration’s broad controls over contracting, the federal contractor workforce could quickly become low-hanging fruit for some form of mandated vaccine requirements depending on vaccine status.
Federal contractors should be proactive in anticipating this probable requirement and take steps now to apply best practices in their employee vaccine-related policies. Many of these best practices can be found in a very recent Blank Rome publication that can be found at New Workplace Trends Emerge from Fourth COVID-19 Employer Survey Results.
This blog post was referenced in Government Executive on May 14, 2021, at Will COVID Vaccines Be Required for Federal Contractors, and How Would a Mandate Be Enforced? and on July 29, 2021, at Biden: Onsite Contractors Must Attest to Vaccine Status or Be Subject to Restrictions.