Vaccine Mandate

On September 9, 2021 EO 14042 established a requirement for federal agencies beginning October 15, 2021 to only enter into Service and Construction contracts with contractors that “provide adequate COVID – 19 safeguards for their workforce” that works on or in connection with a federal contract, and directed the White House’s Safer Federal Worker Task Force to issue Guidance describing the necessary “safeguards,” which it did on September 24. On September 30, the FARC, CAAC and DAC each issued Deviation authority for their respective agencies to begin using a Clause (attached to linked Deviations above) describing the contractor and subcontractor requirements - in solicitations beginning October 15, and in all new or amended contracts (regardless of solicitation date) by November 24. The Guidance requires full vaccination of covered employees by December 8, and full vaccination is defined as two weeks following the last dose of any FDA emergency use authorized vaccine; requires vaccination of covered employees with natural immunity and those working from home; discusses generally, medical and religious exemptions; and describes social distancing and mask requirements for vaccinated and unvaccinated individuals in areas of low and high transmission rates.

Neither the Guidance, the Deviation Clause authorizations nor the Clause itself require reporting or disclosures by a contractor to a contracting or enforcement agency (though a certification or representation clause may be developed in the future); neither do they require maintenance of vaccination records, just that a covered employee “show or provide” a copy to the contractor, nor do they require testing of the unvaccinated. A more detailed review of contract coverage and the Guidance requirements are in Pillar’s subscriber content.

There are procedural problems with the implementation of the Clause (APA rulemaking requirements) and any effort to withhold contracts from contractors who don’t comply would run into due process problems because of the manner in which the “rule” was implemented, the fact that it is “guidance” and not a regulation, and the manner in which the failure to comply will be determined (if that’s done in any way close to how this FAR rule was created). For Supply contracts and all contracts under the SAT, the EO itself omits and exempts them respectively, but the Guidance and FARC and CAAC authorizations encourage agencies to require the clause in Supply contracts and all contracts under the SAT, which is beyond the authority of the Councils much less the “task force” (the GSA Deviation authorization strongly encourages but doesn’t require the clause for Supply contracts as well as contracts below the SAT, requires bi-lateral amendments to existing contracts by November 14, 2021, and provides a model letter to contractors stating that the GSA will begin hiding the information of those contractors who don’t sign a contract modification including the Clause).

The FAR regulation requiring the Clause is set to go in FAR Part 23 (environmental considerations), which for employer purposes also includes the policies of drug-free workplaces and texting while driving requirements, two rarely (if at all) enforced requirements. If this EO is enforced as a “best efforts” rule, then it is a method to encourage vaccination with no real consequences. However it is intended to be enforced, the process by which it was created looks like a high school talent show production, doesn’t meet the legal requirements of promulgating a regulation or establishing coverage to contracts which it seeks to cover - the acquisition professionals who signed the authorizations know this, and the scare tactics for bi-lateral modification are over the top; the legal challenges to the “rule” and the process of creating it might succeed before it can begin affecting contract awards or orders under existing contracts, but not before a weeks long fire drill by contractors to understand and plan how to comply with it, some stress on contractor employees with natural immunity (or not) having to potentially choose between their job and forced (emergency authorized use only) vaccination, and some thought by many contractors about employer risk for negative reactions to forced vaccines (the EO does not create a legal requirement on contractors, but requires them to make a choice whether to agree to it as a condition of a contract), how much of their workforce might quit in response, and how much the government’s business is really worth to them.