Government Provides New Compliance Flexibility under Contractor Vaccine Mandate

Justin A. Chiarodo and Stephanie M. Harden

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Stephanie Harden's Headshot Photo

Yesterday, November 1, 2021, the Safer Federal Workforce Task Force issued significant new guidance for contractors implementing vaccine mandates. The two key takeaways are: (1) contractors are not required to terminate unvaccinated employees immediately when the mandate goes into effect on December 8, and (2) federal agencies should not terminate contracts if a contractor is actively working toward compliance, even if the contractor faces challenges to achieving full compliance. The full updated FAQ is available on the Safer Federal Workforce Task Force website.

Are contractors still required to mandate vaccination by December 8?

Yes, covered contractors are still required to mandate that employees get vaccinated by December 8. However, rather than terminate noncompliant employees after the December 8 deadline, contractors should “determine the appropriate means of enforcement” for their employees.

The updated FAQ suggests using the approach taken by federal agencies as a model: that is, to offer a “limited period” of counseling and education for employees before undertaking any disciplinary measures and only pursue termination after “continued noncompliance.”

Importantly, contractors should require masking and physical distancing for unvaccinated employees and should also consider imposing a weekly testing requirement if unvaccinated workers will be in close proximity to others.

What if employees still refuse to get vaccinated, even after being provided with counseling and education regarding the vaccines?

The contractor should collect data regarding its vaccination rate and then have a dialogue with its contracting officer(s) about the challenges it is facing, including the impact on its operations if it were to terminate unvaccinated employees. In cases where contractors “are working in good faith” but “encounter challenges with compliance,” contracting officers are now expressly directed to “work with” contractors to address their challenges. (See “Compliance” portion of Q&A.) We interpret this directive to mean that contracting officers may offer extensions or provide limited waivers, so long as the contractor is making a good faith effort to comply with the mandate.

What steps should contractors take to demonstrate they are working to comply with the mandate?

As confirmed in a White House briefing for contractors yesterday (Nov. 1), contractors should:

      • ensure they have a policy requiring vaccination,
      • communicate the policy to employees,
      • collect documentation regarding employees’ vaccination status, and
      • engage in outreach and education for noncompliant employees.

Complementing this work, contractors should continue to actively communicate with their contracting officers about compliance with the mandate, including the potential performance impacts and added costs that might arise in the event of workforce reductions tied to the mandate.

Contractors should also consider opportunities to comment on forthcoming rulemaking for the formal FAR rule implementing EO 14042.

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