“If you want to do business with the federal government, get your workers vaccinated.” -President Biden, July 29, 2021
Please join Blank Rome’s Albert B. Krachman, partner in our Government Contracts practice group, and Brooke T. Iley, partner and co-chair of our Labor & Employment practice group, as they provide timely and insightful analysis of President Biden’s vaccination mandate for federal contractors in the wake of the Delta variant, including in-depth discussion of:
COVID-19 vaccinations as an element of FAR Part 9—Contractor Qualifications
Scope of Mandate
Contractor Vaccination Program Design
Resolving Federal/State/Local Law Conflicts
Vaccinations and Federal Market Share—Trends to Watch
Tuesday, August 31, 2021 | 1:00—1:30 p.m. EDT Online Event
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.
Federal contractors have long provided various types of anti-harassment, nondiscrimination and diversity and inclusion, or D&I, training to their employees. After the death of George Floyd and the nationwide protests that followed, D&I training has proliferated in workplaces across the country, including within federal agencies and in the contractor community.
In response to the widespread public protests for racial equality, many companies and executives issued public statements denouncing racism. Many also pledged millions of dollars to social justice organizations. In numerous workplaces, employees have taken the initiative to organize book clubs and discussion circles focused specifically on promoting open workplace discussions about race. Some employers have provided lists of resources for employees seeking to learn more about issues of race.
On Sept. 22, the Trump administration issued a bombshell executive order purporting to ban certain types of D&I training, leaving federal contractors scrambling to determine how best to comply, and how to identify and mitigate the new risks they now face.
President Donald Trump has been vocal about his views on the discourse of racial issues following the nationwide protests for racial equality that started at the beginning of the summer.
In June, the president rejected calls to rename military bases honoring Confederate generals. The Trump administration issued a memorandum on Sept. 4, directing agencies to identify:
all contracts or other agency spending related to any training on critical race theory, white privilege, or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil [and to] identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.
The executive order that followed three weeks later takes aim at contractor-provided workplace D&I training that the Trump administration considers divisive and objectionable.
On Tuesday evening, the Trump administration surprised the federal contracting community by issuing an Executive Order (“EO”) titled “Combating Race and Sex Stereotyping” that will ban federal contractors from conducting certain types of anti-discrimination training. In particular, the EO prohibits workplace racial sensitivity and diversity and inclusion (“D&I”) training programs that contain so-called “divisive content,” defined in the EO as instilling a belief in the existence of systemic racism and inherent bias. The EO expands an earlier ban issued in a September 4, 2020, memorandum that prohibits certain anti-discrimination training from being conducted within federal agencies.
The EO comes on the heels of a widespread social and racial justice movement that dominated much of the summer of 2020, in response to which corporate America has taken a stand, with companies pledging millions to social justice reform movements. An overwhelming number of employers either have offered or plan to offer some form of diversity training to their employees. This latest EO leaves many federal contractors and subcontractors wondering whether and how to proceed, and what penalties they may face if they offer such training. Continue reading “Trump Administration Bans Contractors from Providing Certain Types of Diversity Training”