Justin A. Chiarodo, Stephanie M. Harden, and Samarth Barot
Earlier today, November 4, 2021, the White House issued a fact sheet addressing its vaccination policies, including the government contractor mandate under EO 14042. Three key points stand out: (1) the compliance deadline for “full vaccination” status will be extended from December 8, 2021, to January 4, 2022; (2) the Occupational Safety and Health Administration (“OSHA”) vaccine rule for larger employers (which may permit weekly testing in lieu of vaccination) will not apply to workplaces covered by the federal contractor mandate; and (3) the Government continues to take the position that its mandates will preempt conflicting state or local laws. The full press release can be found at Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies.
How does this new guidance impact government contractor compliance with EO 14042?
Most notably, the guidance extends the deadline for full vaccination status for covered contractors from December 8, 2021, to January 4, 2022. Covered contractor employees should receive their final vaccine dose by the new January 4, 2022, deadline.
This builds on a recent trend of relaxing the contractor vaccine mandate compliance framework. As we discussed in our recent post, Government Provides New Compliance Flexibility under Contractor Vaccine Mandate, covered employees do not need to be terminated immediately after the deadline as a result of a compliance failure.
How does the Government interpret the relationship between the OSHA Standard for Large Employers and EO 14042?
Bottom line, the Government views EO 14042 as taking priority over the OSHA mandate. Under the new OSHA standard released today, companies with 100 employees or more must ensure their workers are fully vaccinated by January 4, 2022, or be tested weekly for COVID-19. However, the fact sheet states that the federal contractor mandate takes priority over the OSHA standard at covered workplaces, meaning covered workplaces under EO 14042 are subject to the higher standards that require universal vaccination absent religious or medical exemption—there is no testing option.
How should contractors react to the Government’s position on the pre-emption of state law?
Recent lawsuits and executive actions by several states challenge the federal vaccine mandate and raise questions about both the ultimate enforcement of EO 14042, as well as potential contractor liabilities. The Government continues to reinforce its position that the federal mandates, including EO 14042, pre-empt state law. Given this tension, contractors should be mindful of preserving rights under their contracts, including the government contractor defense (which we previously covered in State Vaccine Mandate Bans: What Are Federal Contractors to Do?).
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