Labor & Employment

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?

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

On September 24, following President Biden’s September 9 Executive Order, Ensuring Adequate COVID Safety Protocols for Federal Contractors, the Safer Federal Workforce Task Force (Task Force) issued new guidance on COVID-19 safety protocols applicable to federal contractors and subcontractors. It is notable that the guidance does not apply to grants.

Before the guidance was released, the Director of the Office of Management and Budget determined, as required by the Federal Property and Administrative Services Act that compliance with those measures laid out in the guidance will promote economy and efficiency in federal contracting. This determination was met because decreasing the spread of COVID-19 “will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.”  There is no indication that the director considered the impacts of attrition or costs on businesses to administer these requirements.

Breakdown of Requirements under New Executive Order

These requirements, in addition to any requirements applicable in a federal workplace, apply to contractors and subcontractors with a “covered contract.”  The obligations that the guidelines require to be part of a soon-to-be draft contract clause include:

  • By December 8, 2021, “covered contractor employees,” regardless of prior COVID-19 infection and associated immunity must be “fully vaccinated” for COVID-19. This means that at least two weeks have passed after they have received the last required dose of an approved vaccine, except in limited circumstances where an employee is legally entitled to an accommodation.

    Many contractors have questions regarding when an employee may be legally entitled to an accommodation.  The guidance provides that this may be the case “because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.”  It continues, “[r]equests for ‘medical accommodation’ or ‘medical exceptions’ should be treated as required for a disability accommodation.”

    After December, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded contract and by the first day of the performance period on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.  This also applies to contractor employees working from home on a covered contract.

  • Compliance by covered contractor employees and visitors with published CDC guidance for masking and physical distancing is required while in a “covered contractor workplace.”  This does not apply to covered contractor employees working from home.  It does, however, require that in areas of “high or substantial community transmission,” even fully vaccinated individuals wear a mask in indoor settings.  To determine the level of community spread, covered contractors must check the CDC COVID-19 Data Tracker County View website.
  • Designation by covered contractors of a COVID-19 workplace safety coordinator at covered contractors’ workplaces whose primary duties appear to be communicating the required safety protocols to all covered employees and visitors and confirming compliance by reviewing the required vaccine documentation.  COVID-19 workplace safety protocols may comprise some or all of this person’s regular duties.

Continue Reading Contractors, You Will Get the Jab!

On September 9, among other measures, President Biden issued an Executive Order that will result in a mandate that contractor employees “performing on or in connection with a Federal Government contract or contract-like instrument” be vaccinated against COVID-19.  The procedural steps, culminating in the issuance of a new contract clause that must occur before that mandate is effective are outlined below, along with another mandate to be implemented by the Department of Labor’s Occupational Safety and Health Administration (OHSA) that will apply to all companies in the U.S. with more than 100 employees.  While neither are immediately effective and both will almost certainly face significant legal challenges, contractors must be aware of these requirements and start preparing now for their implementation.

New Executive Order Requires Government Contractors to Be Vaccinated for COVID-19

Unlike some Executive Orders that rely on the president’s own determination to direct a change to government contract requirements, the September 9, 2021 “Executive Order on Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors” requires first that by September 24, 2021, the Safer Federal Workforce Task Force issue protocols for contractors and subcontractors to comply with workplace safety guidance.  This guidance must include any exceptions that apply to contractor workplace locations and individuals.

Before the publication of the new guidance, the director of the Task Force, under a delegation of the president’s authority under the Federal Property and Administrative Services Act, must determine whether the guidance will “promote economy and efficiency in Federal contracting if adhered to by Government contractor and subcontractors.”  Given that any vaccine mandate will almost certainly result in a significant number of contractor employees leaving the workforce, it is not clear whether the guidance would meet that standard.Continue Reading Contractors, is it Time to Get the Jab?

As states and cities begin to ease COVID-19 restrictions and organizations return their employees to the workplace, employers are forced to navigate an unprecedented and fluid landscape of post-pandemic compliance issues.

This virtual seminar will address the difficult issues facing employers as they return their employees to the workplace and provide practical guidance for understanding…

Later this month, the GSA will issue a refresh to all GSA Multiple Award Schedules (MAS) to incorporate new provisions and clause updates. Even if you are already a GSA Schedule holder, keep reading – a bilateral modification will be issued for your contract.
Continue Reading April Showers Bring Mass Mods: New GSA Schedule Refresh and Mass Modification

On March 31, 2017, the United States Civilian Board of Contract Appeals (CBCA) dismissed a contractor’s claims against the Department of Veterans Affairs (VA) for a lack of jurisdiction, stating that the contractor should have secured a final decision from the General Services Administration (GSA) prior to filing its claim. According to the CBCA, since the dispute was over the terms of a GSA Schedule contract and not over contract performance, proper procedures call for a decision from the GSA Schedule contracting officer before the CBCA can weigh in on the dispute.
Continue Reading Agency First! – CBCA Refuses Jurisdiction over Contractor’s Challenge of Wage Rate Adjustments Despite Final Decision from Contracting Officer

As we previously reported, Congress has taken its final steps in repealing Obama’s Fair Pay & Safe Workplaces rule, one of the most controversial rules enacted by the Federal Acquisition Regulatory (FAR) Council under President Obama. On February 6, the Senate gave the final vote of approval of the House Resolution overturning the rule, and on March 27, President Trump, unsurprisingly, signed the Resolution into law. At the same time, he also signed legislation overturning three other rules, including the U.S. Bureau of Land Management’s land use planning rule and two rules issued by the U.S. Department of Education.  Though much of the Fair Pay rule had never been implemented due to a court injunction, this legislation formally revokes the rule and ensures that the FAR Council cannot enact a similar rule without Congressional approval.
Continue Reading Ding Dong the Regulation’s Dead! – Trump Finalizes Statutory Repeal of the Fair Pay and Safe Workplaces Rule

As we previously reported, following the start of the Trump Administration, Congress has moved aggressively to overturn regulations passed in the final days of the Obama Administration through the rarely-used powers in the Congressional Review Act (CRA). This focus on CRA actions, which is in keeping with the Trump Administration’s broader goal of eliminating costly regulations, has taken time and attention in the early days of the 115th Congress because the CRA gives Congress a limited amount of time to reverse regulations.  One of the rules that has been targeted for elimination is the Fair Pay & Safe Workplaces rule, a rule subject to much debate and controversy since its enactment in August 2016. Recent Senate action makes it likely that the rule, which would have imposed billions of dollars in costs on taxpayers over the next decade, will be eliminated next week.
Continue Reading Last Straw for the Fair Pay & Safe Workplaces Rule – Congress to Take Final Vote on Repeal

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

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