The vaccine mandate remains the talk of the governing contracting community. Even as a new lawsuit seeks to block the mandate, many contractors are working feverishly in an effort to comply.
Last week, I addressed responses to five common misconceptions I am hearing about the vaccine mandate. But I am seeing many more misconceptions, and updated guidance from the Safer Federal Workforce Task Force helps address some of them. So let’s take a look at five more common misconceptions about the contractor vaccine mandate.
1. Misconception: because an employee who previously had COVID-19 has developed natural immunities, the employee need not be vaccinated.
Like many of the common misconceptions, this one has some logical appeal, but it is untrue. According to the Task Force, “covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated.” In a similar vein, the Task Force says that “[a] covered contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.”
2. Misconception: if my state or locality has banned vaccine mandates, this ban supersedes the federal vaccine mandate.
It should come as no surprise that the federal government rejects this contention. The Task Force says, “[t]hese requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.”
3. Misconception: if an employee has requested an accommodation for disability/medical or religious reasons, the contractor must reach a decision by January 4.
Many contractors will breathe a sigh of relief when they realize that they need not adjudicate all employees’ accommodation requests by January 4 (or whatever date the contractor is required to meet the vaccination requirements). The Task Force recently offered this new explanatory Q&A:
Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?
A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.
This is good news for contractors, some of whom may be dealing with dozens or even hundreds of accommodation requests. While the Task Force does not directly address it, the response does seem to suggest that accommodation requests must be submitted by the appropriate date. My colleagues and I will keep our eyes peeled for any additional clarifications in this regard.
4. Misconception: If a contractor is temporarily unable to meet the vaccination requirement, the prime contract automatically will be terminated.
Don’t get me wrong: termination absolutely is a risk if a contractor is unable to meet all requirements of the vaccine mandate. Fortunately, though, the latest guidance encourages Contracting Officers to take intermediate steps before terminating a contract for this reason:
Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.
As the guidance indicates, termination is not automatic if a contractor–acting in good faith–temporarily is unable to comply.
5. Misconception: a prime contractor must obtain vaccine cards or similar proofs of vaccination from employees of subcontractors.
Prime contractors are responsible for flowing-down the implementing clause to covered subcontractors. But, contrary to a common misconception, that’s where the prime’s obligation vis-a-vis subcontractor compliance generally ends. The Task Force offers the following Q&A:
Q: May the prime contractor assume the subcontractor is complying with the clause?
A: Yes, unless the prime contractor has credible evidence otherwise.
The prime is not required to gather vaccination cards or other proof of vaccination, as the prime must do for its own employees.
The contractor vaccine mandate is a rapidly-evolving area of law. My colleagues and I will keep the contracting community posted of significant new developments.
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