Government Contractor FAQ: What’s up with the Vaccine Mandates?

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Scott ArnoldJustin A. ChiarodoStephanie M. Harden, and Samarth Barot

Lawsuits challenging the Biden Administration’s many vaccine mandates have changed the compliance landscape over the last few months. This post summarizes the current status of the four major mandates:

      1. Occupational Safety and Health Administration (“OSHA”) mandate;
      2. Healthcare Worker mandate;
      3. Federal Employee mandate; and
      4. Federal Contractor mandate.

Spoiler alert: The Federal Contractor mandate–which has caused the most significant confusion for Government contractors since its issuance–still does.

1. OSHA Mandate

OSHA’s Emergency Temporary Standard (“ETS”) required that all employees of employers with 100 or more employees either be fully vaccinated or wear a mask and submit to weekly COVID‑19 testing. On January 13, 2022, the Supreme Court upheld a preliminary injunction of the OSHA mandate, finding that it likely exceeded OSHA’s authority.

Status: Withdrawn (OSHA announced that it was withdrawing the ETS on January 26, 2022).

2. Healthcare Worker Mandate

The Centers for Medicare & Medicaid Services issued a vaccine mandate for healthcare workers on November 5, 2021. It required that workers at facilities receiving Medicare or Medicaid funding be vaccinated. On January 13, 2022, the Supreme Court lifted preliminary injunctions against the enforcement of this mandate pending litigation on the merits of the challenges.

Status: The Healthcare Worker mandate remains in effect.

3. Federal Employee Mandate

This mandate required federal employees to be fully vaccinated by November 22, 2021. On January 21, 2022, the United States District Court for the Southern District of Texas issued a nationwide injunction blocking this mandate, citing the recent decision from the Supreme Court on the OSHA mandate.

Status: Preliminarily enjoined. But note that while the vaccine requirement for federal employees is on hold, other guidance on topics such as “masking, distancing, travel, testing, and quarantine” remains in effect. See Frequently Asked Questions Related to Compliance with the Federal Employee Mandate.

4. Federal Contractor Mandate

Most federal contracts for services were subject to a vaccine mandate implemented by Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. The FAR Council issued a class deviation at 52.223-99 on September 30, 2021, with additional guidance provided on a rolling basis via the Safer Federal Workforce Task Force’s website. See FAR-Council-Guidance-on-Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf. The key requirements of the mandate were that all covered contractor employees either be vaccinated or obtain a medical or religious exemption, that contractor employees comply with masking and distancing requirements, and that contractors designate a person to coordinate implementation of the Task Force guidance. Id.

The Federal Contractor mandate was challenged in several courts. On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction against the federal contractor mandate (the injunction is currently on appeal to the 11th Circuit). See Georgia v. Biden, No. 2:21-cv-163 (S.D. Ga. Dec. 7, 2021), available here.

In response to this injunction, the Safer Federal Workforce Task Force issued guidance regarding what agencies are to do in light of the injunction:

For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042: The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.

See For Federal Contractors | Safer Federal Workforce.

This Guidance remains in place despite an intervening supplemental ruling in the Georgia case on January 21, 2022, where the court—ironically while declining a Government request for clarification of the earlier ruling—did in fact clarify that its injunction only applies to the vaccine mandate portion of the rule (not the requirements relating to masking, distancing, and designation of an individual to coordinate safety protocols). At this point, it remains to be seen whether the Task Force will change its position in light of the court’s clarification, and attempt to enforce masking and social distancing aspects of the mandate while the vaccine portion remains enjoined.

In light of these latest developments we’ve updated our best practices as follows:

      1. Refrain from taking any employment action based solely on EO 14042.
      2. Continue to follow the laws (e., state and local) remaining in force and be aware that agencies may still require vaccination for contractor employees who will perform on site at federal facilities.
      3. Continue to follow corporate policies regarding COVID-19 safety (g., encouraging vaccinations, physical distancing, telework policies, etc.).
      4. Recognize that, even to the extent enforcement of the vaccine mandate remains enjoined, the Safer Federal Workforce Task Force could update its guidance in efforts to enforce portions of EO 14042 not subject to the nationwide injunction.
      5. Resist the inclusion of Vaccine Mandate clauses in new prime contract and subcontracts.

Stay tuned for further developments.

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