It has been a busy week on the federal contractor COVID-19 vaccine mandate front. We answer questions below about the new class deviations that should start showing up in new contracts and solicitations, and key open issues on exemptions and coverage.
Where do things stand right now?
The Executive Order (“EO”) contemplated formal FAR amendments to be published by October 8, 2021. That date looks like it will slip. The open FAR Case shows an Ad Hoc Team has been tasked with drafting a FAR rule, with a report due on November 17. In the interim, both the Civilian and Defense Agency Acquisition Councils issued class deviations (here and here, respectively) implementing the EO. The deviations largely mirror the September 24, 2021, guidance.
What do the class deviations cover?
As a reminder, the vaccine mandate is imposed through contract clauses, so the actual timing and scope will depend on when your business has a covered contract action. Contracting officers must insert a new clause (FAR 52.223-99 or DFARS 252.223-7999) in solicitations, contracts, orders, and modifications performed in the United States for services (including construction) that are:
- Issued on or after October 15, 2021 (and contracts, task orders, and delivery orders awarded thereunder expected to exceed the simplified acquisition threshold (currently $250,000))
- Extensions, renewals, and options issued or exercised on or after October 15, 2021
- Awarded on or after November 14, 2021 (from solicitations issued before October 15, 2021, that exceed the SAT)
Contracting officers may insert the clause in:
- solicitations, contracts, orders, and modifications issued before the dates above; or
- contracts for the manufacturing of products.
Contracts with certain Indian Tribes, and those performed outside the United States, should be exempt from the requirement, as well as those below the simplified acquisition threshold (currently $250,000).
What happens if I don’t agree to a modification?
We would expect contractors not agreeing to clauses—where such clauses are required—will not be able to continue performance beyond current periods. For instance, GSA issued its own class deviation noting that contracting officers shall not exercise an option period or extend the period of performance for covered agreements unless the contract has been modified to include the new clause.
Given the stakes here, contractors should continue to raise coverage and scope questions with their contracting officers, particularly where they could or should be exempt (e.g., manufacturers).
What about religious and medical exemptions?
The Task Force also issued a FAQ about the mandate for federal workers, which specifically states that accommodations may be granted for medical conditions, even where those conditions do not technically constitute a “disability”—an important clarification, given that vaccines may be contraindicated for a variety of medical reasons that do not constitute disabilities. While this guidance technically only applies to federal agencies, it provides a useful benchmark for contractors seeking to navigate these issues.
What types of accommodations are appropriate?
The recent FAQ for federal agencies advises that individuals with an exemption should follow “applicable masking, physical distancing, and testing protocols for individuals who are not fully vaccinated, as well as applicable travel guidance.” While this guidance is technically only applicable to federal workers, it is an important recognition that masks, distancing, and testing may be sufficient accommodations for many employees.
The FAQ goes on to advise that there may be instances in which no accommodations are adequate. This underscores the need for an individualized assessment of an employee’s job duties, the threat posed by the virus in that particular location, as well as the ability of any proposed accommodations to adequately mitigate that threat. This is consistent with EEOC guidance published earlier this year. In short, a one-size-fits-all approach will not be sufficient.
What is next?
Important questions still remain, including how to navigate the timeline for coming into compliance where contractors have a significant number of vaccine-resistant employees and how to navigate the accommodations process, particularly for religious accommodations based upon beliefs or practices that are newly adopted or for which there may be little documentation.
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