The Safer Federal Workforce Task Force (the Task Force) put out new guidance in its Frequently Asked Questions (FAQ) on Nov. 1, 2021. The new FAQ provides a mixed bag for federal contractors: some helpful responses, and some which may be concerning.
As a reminder from one of our previous updates, the new FAR/DFARS deviation clauses implementing President Biden’s Sept. 9 Executive Order require compliance with any FAQ published by the Task Force. As such, when the Task Force publishes new items, federal contractors who have “covered contracts” need to be prepared to comply.
Contractors can easily view what’s been updated by going to the Task Force’s website, and clicking on “What’s New?” That page provides a list of recent updates. The FAQ also identifies a question/answer as “new” when changes have been made.
On the helpful side, the Task Force has clarified that all accommodations need not be approved or rejected by the Dec. 8 vaccination deadline. Rather, if accommodations are still under review, a contractor can require its employees seeking an accommodation to take other protective measures pending completion of the review. Agencies may still prohibit such persons from entering government sites/facilities or mandate additional measures to enter.
Additionally, the Task Force has clarified that noncompliance by an employee doesn’t mean that the contractor must immediately terminate them. Rather, the contractor can follow its own internal policies to determine the appropriate discipline and/or termination procedures. However, the Task Force makes clear that repeated failure by the contractor to ensure it is in compliance with the mandate’s requirements allows the agency it works with to take “significant actions, such as termination of the contract.”
Of concern to some contractors will be the Task Force’s clarification that the rules issued under its Sept. 24 Guidance do apply to affiliates of covered contractors. This was not clear previously. As a result, employees of affiliated companies (meaning those who own or control the covered contractor, are owned or controlled by the covered contractor, or are in common control with the covered contractor) are also required to comply with the vaccine mandate set forth the in the Guidance, if they share the covered contractor’s workplace location. This is a significant coverage expansion for some contractors who may have previously thought that their corporate structure limited the applicability of the vaccine mandate.
In the not helpful category, one of the new FAQs tells contractors that the workplace safety protocols for employees (other than those fully vaccinated) is really up to each federal agency or each federal workplace. Depending upon “circumstances,” an agency may require heightened safety protocols or may decide that no safety protocol is enough, limiting access only to fully vaccinated employees. Even more concerning, the FAQ warns that, even though an agency may prevent access to employees who are not fully vaccinated, the contractor is still responsible to meet all contractual requirements. It’s difficult to understand how contractors are to comply when the FAQs tell them that requirements are up to each federal agency and federal workplace.
Taft’s Government Contracts and Employment Law groups are continuing to monitor this situation and will provide additional updates as they are published.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.