Government Contracts

As expected, late on November 10 the Safer Federal Workforce Task Force revised its government contractor vaccine mandate Guidance to extend the deadline for covered contractor employees to get vaccinated. This revision follows the White House announcement on November 4 that the deadline for implementation of the federal government contractor mandate would be synchronized with the CMS rule and the currently-stayed OSHA Emergency Temporary Standard, requiring that employees under all three regimes receive their last vaccine dose by January 4, 2022. Instead of using the date by which employees had to received their last vaccine dose, January 4, the Guidance has been revised to now say that covered contractor employees must be fully vaccinated by January 18, 2022 rather than the original December 8, 2021. As a reminder, fully vaccinated means an individual must have received the last vaccine dose two weeks prior.

In addition, the Q&A that previously appeared at the end of the September 24 Guidance has been removed and replaced with two references to the Task Force’s website:

Frequently Asked Questions

Frequently Asked Questions regarding this Guidance can be found here: https://www.saferfederalworkforce.gov/faq/contractors/

All Task Force Guidance, FAQs, and additional information for Federal contractors and subcontractors can be found here: https://www.saferfederalworkforce.gov/contractors

It is not clear whether any other changes were made to the Guidance because the changes were not made in redline.Continue Reading More Revisions to the Government Contractor Vaccine Mandate

The five cases challenging the contractor vaccine mandate filed in various district courts by 22 states, which we discussed on this blog last week, continue to develop. Motions for preliminary injunctions have now been filed in all cases except the suit filed by Texas, and briefing schedules/hearings are set or in process.

Status of Challenges

Here is a quick rundown of the status of the suits:

  • Florida (Middle District of Florida) – Motion for a Preliminary Injunction was filed on November 2. On November 8, the court set a briefing schedule. Oral argument is scheduled for December 7 at 9:00 a.m. Eastern in Tampa Courtroom 15 A.
  • Texas (Southern District of Texas) – Initial pretrial and scheduling conference set for February. 23, 2022, at 9:00 a.m. Central. As of November 10, no motion for a preliminary injunction has been filed.
  • Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming (Eastern District of Missouri) – Motion for Preliminary Injunction was filed on November 4. On November 9, the states filed a Motion to Expedite Preliminary Injunction Briefing.
  • Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia (Southern District of Georgia) – Motion for Preliminary Injunction was filed on November 5. Emergency motion to expedite the hearing schedule was filed on November 8, and a telephonic hearing on that motion is scheduled for 4:00 p.m. Eastern on November 10.
  • Tennessee, Kentucky, Ohio (Eastern District of Kentucky) – Motion for a Temporary Restraining Order and Preliminary Injunction was filed on November 8. A status conference was held on November 9 to set a briefing and hearing schedule.

Continue Reading The State Challenges to the Contractor Vaccine Mandate Continue

There is a new weapon in the Department of Justice’s (DOJ’s) already powerful False Claims Act (FCA) arsenal.  In October 2021, the DOJ announced a new Civil Cyber-Fraud Initiative, under which it will pursue FCA liability against government contractors in the cybersecurity space.  According to the announcement from Deputy Attorney General Lisa O. Monaco, the…

In welcome news for government contractors, the government contractor vaccine mandate continues to soften.  In a statement issued by the White House this morning, the deadline for complying with the mandate will be extended from December 8, 2021, to January 4, 2022, to align with the deadline of the OSHA emergency temporary standard that was…

UPDATE: On November 4, Tennessee, Kentucky and Ohio filed a complaint in the Eastern District of Kentucky challenging the federal contractor mandate.  The complaint is very similar to the ones filed by other states as described in the blog post below.

At the end of October 2021, four complaints were filed by almost 20 states challenging the government contractor vaccine mandate. While some have suggested that these states, led by Republican governors, filed the suits for political reasons, it would be a mistake to discount them.  The complaints raise very significant procedural and substantive questions about the legality of the government contractor vaccine mandate.

The Complaints

On October 28, the State of Florida filed suit in the Middle District of Florida (the Florida Complaint).  The following day, ten more states – Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming – filed a complaint in the Eastern District of Missouri (the Missouri Complaint); a further seven states – Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia – filed suit in the Southern District of Georgia (the Georgia Complaint); Texas filed a complaint in the Southern District of Texas (the Texas Complaint).

While there are multiple differences between the complaints, there is a high likelihood that the states have established standing to challenge the government contractor mandate as they all have agencies or other entities that are party to federal contracts and contract-like instruments.  In addition, each complaint seeks declaratory and injunctive relief but as of November 3 it appears that only Florida has filed a motion for a preliminary injunction. We expect the others to be filed soon. Also, they all make facially compelling procedural and substantive arguments that Executive Order 14042, the OMB Guidance, and the government contract provisions are unlawful.Continue Reading States Have Joined the Fight to Challenge the Government Contractor Vaccine Mandate

The Safer Federal Workforce Task Force (Task Force) recently issued additional Q&A’s that seemingly take a softer approach to compliance with the contractor vaccine mandate, indicating contracting officers are to “work with,” rather than punish contractors, in an effort to address challenges such as employees refusing to get vaccinated.  Other answers in the Q&A further expand the mandate’s coverage to affiliates in ways that, while well-intentioned, may increase growing opposition to the already incredibly broad diktat.

For those reasons, unless and until the mandate is reversed by the administration or stopped by a federal court, which, as we will discuss in another post, now seems to be a real possibility, contractors subject to the contract provision should continue working toward getting “covered contractor employees” vaccinated by December 8 and processing requests for medical and religious accommodations.  But it does suggest that the administration belatedly realizes that the vaccine mandate could cause very significant supply chain disruptions if strictly enforced.

The New Q&As

In the new Q&A’s issued on November 1, the Task Force clarifies several points that provide welcome flexibility for contractors.  They also confirm that contractors working in good faith toward compliance may not be subject to punishment for failing to get 100% of their workforce vaccinated.  But in other Q&As, the Task Force continues its incredibly broad implementation of the mandate.Continue Reading Is the Contractor COVID-19 Vaccine Mandate Softening?

As contractors and agencies scramble to comply with the government contractor vaccine mandate, which is currently on hold due a nationwide injunction issued on December 7, 2021, there seems to be growing confusion over whether contractors or federal agencies are responsible for evaluating whether contractor employees working at government sites are entitled to medical or religious accommodations. In some cases, agencies tell contractors that the government, not the contractor, is responsible for adjudicating accommodation requests.  In others, agencies are demanding to see the justification for accommodation determinations and independently evaluate those determinations.

This confusion is unfortunate because it is clear that the contractor, not the government, is responsible as the employer. To the extent agencies are usurping contractors’ obligation to make these determinations, the government is increasing the likelihood it will be viewed as a joint employer, needlessly exposing both the government and contractors to potential liability.

Employers are Responsible for Making Accommodation Determinations

For decades, employees have had the right to request medical accommodations under the Americans with Disabilities Act (ADA) and religious accommodations under Title VII of the Civil Rights Act of 1964. Those requests have always been submitted to their “employer,” even when those employees work at an off-site location.Continue Reading Who is Responsible for Granting Medical/Religious Accommodations to the COVID-19 Vaccination Mandate?

On September 9, President Biden issued Executive Order 14042 requiring that federal contractors comply with forthcoming COVID-19 workplace safety guidance. That guidance, which was issued on September 24, is remarkably broad, requiring that employees working directly on government contracts, in connection with government contracts, or in the same facility as an employee in the first…

Well, that was quick.  In four memos dated September 30 and October 1, contractors learned the terms of the contract provisions implementing the COVID-19 vaccine and masking requirements mandated by President Biden’s Executive Order (EO) 14042, discussed here, and the implementing guidance issued by the Safer Federal Workforce Task Force (Task Force) on September 24. In the next 10 days we expect to see most other agencies issue deviation memos similar to the General Services Administration (GSA) and Department of Defense (DoD) memos discussed below.

As discussed in this post, while the contract provisions, along with updated guidance from the Task Force, answer some of the open questions, contractors are still in the unfortunate position of rushing to ensure they are compliant with these requirements when the contract provisions apply to them without knowing the answers to some fundamental questions. Despite these open questions, companies have little time, for example, to ensure that covered employees are vaccinated by the December 8, 2021 deadline. After that deadline, any contractor that becomes subject to these requirements will have to ensure that on new contracts or options/extensions that incorporate the new clause, covered employees are fully vaccinated by the first day of performance, which of course is impossible unless contractors enforce these vaccine mandates in advance. That said, the memos do seem to clarify that compliance with the Task Force guidance will not be required for prime contracts solely for the manufacturing of products.

The FAR Clause

On September 30, the Federal Acquisition Regulation (FAR) Council issued a memo providing agencies with “initial direction” requiring the implementation of the Task Force guidance. It includes FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (OCT 2021) (Deviation), along with directions that agencies “expeditiously” issue class deviations to ensure that contracting officers can begin using the clause on or before October 15, 2021.Continue Reading And … They’re Off! Contractors Race to Comply Now that the COVID-19 Vaccination Deviations Have Arrived

I recently outlined the ever-growing list of compliance obligations for businesses that sell goods and services to the federal government in an article for Risk Management. “Some of the new regulatory requirements – such as obligations relating to cybersecurity and counterfeit parts – address challenges posed by an increasingly global, networked economy,” I explained in the article. “Others, such as the mandatory disclosure requirement, continue the trend of the government relying on third parties, whether it be whistleblowers or contractors themselves, to police the procurement system.”

To address the rising risk these complications pose, businesses should first ensure they have established an underlying compliance structure required by federal procurement regulations, as well as design effective training programs, translate the obligations into actionable policies, and effectively monitor adherence with those policies.Continue Reading Compliance Obligations for Government Contractors

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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