The contractor vaccine mandate is the talk of the government contracting community. As contractors scramble to understand the ins-and-outs of the new requirement, my colleagues and I are seeing some of the same misconceptions repeatedly arise.
Without further ado, here are five common misconceptions about the contractor vaccine mandate, and the actual rules you should know in regards to each.
1. Misconception: the vaccine mandate automatically applied to all prime contractors and subcontractors on October 15 (or will automatically apply to all contractors and subcontractors on November 14).
The vaccine mandate does not apply automatically. Instead, a contractor becomes subject to the mandate when an implementing clause is included in a prime contract or subcontract (including lower-tier subcontracts).
According to the Guidance issued by the Safer Federal Workforce Task Force, unless a prime contract is exempt, an implementing clause must be included in: (1) new contracts awarded after November 14; and (2) existing contracts awarded prior to October 15. For existing contracts, the clauses apply “at the point at which an option is exercised or an extension is made.” Contracting officers are encouraged, but not required, to include an implementing clause in contracts awarded between October 15 and November 14.
Once a prime cotractor is subject to the clause, the prime must flow it down to all subcontractors, unless a subcontractor is exempt. Subcontractors must continue to flow the clause down to lower-tier subcontractors, again, unless the lower-tier subcontractor is exempt. A subcontractor becomes subject to the clause “[w]hen the clause is incorporated into a subcontract.”
2. Misconception: the vaccine mandate does not apply to employees who work from home.
Some contractors assume that the vaccine mandate does not apply to work-from-home employees. In fact, unless an employee is entitled to an acccomodation or works outside of the United States and its outlying areas, the vaccine requirement applies to any employee who works “on or in connection with” a covered contract or subontract, even if the employee works from home.
On its website, the Task Force explains:
An individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract. A covered contractor employee’s residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract.
If you would like more information, I discussed work-from-home employees at greater length in an earlier post here on SmallGovCon.
3. Misconception: the government will consider (and approve or reject) an employee’s requests for medical or religious accommodations.
An employee may be entitled to an accommodation (essentially, an exception) from the vaccine mandate if required by applicable employment law, such as the Americans with Disabilities Act. Understandably, some contractors assume that if an employee seeks an accommodation, the contractor should forward the request to the government for a decision.
Except in unusual circumstances, the contractor–not the government–is responsible for determining whether an employee is entitled to an accommodation. The Task Force offers the following Q&A:
Q: Who is responsible for determining if a covered contractor employee must be provided an accommodation because of a disability or because of a sincerely held religious belief, practice, or observance?
A: A covered contractor may be required to provide an accommmodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance. If the agency that is the party to the covered contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.
The key sentence, of course, is “[t]he contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance.” This is why my colleagues and I have been strongly urging clients to work with knowledgeable employment attorneys to help ensure compliance.
4. Misconception: a contractor may accept an employee’s sworn statement that the employee is vaccinated.
What sort of proof of vaccination is a contractor required to obtain? A common misunderstanding is that a contractor can accept an employee’s attestation–essentially, the employee’s sworn statement that he or she is vaccinated. According to the Task Force, however, “[a]n attestation by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccination.” Instead, the Task Force indicates that contractors must obtain “vaccination cards or vaccination records.”
5. Misconception: December 8 is the deadline for an employee to receive his or her first vaccine shot.
The December 8 deadline has garnered considerable attention–but that is the deadline for covered employees to become fully vaccinated. The Task Force says that an individual is considered fully vaccinated “two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine.”
In other words, if an employee becomes “covered” before December 8 (which, as discussed in #1, would be through a contractual clause), he or she would have to receive a shot no later than November 24–two weeks earlier, assuming a one-dose vaccine. If the employee elects a two-dose vaccine, he or she would have to receive a first shot even earlier.
The vaccine mandate is a work in progress, and the Task Force has started updating its website on occasion with new Frequently Asked Questions and additional guidance. My colleagues and I here at Koprince McCall Pottroff LLC will continue to keep the government contracting community updated.