Examining the COVID-19 Vaccination Mandate for Federal Contractors-Examining the COVID-19 Vaccination Mandate for Federal Contractors

Video Transcription

Well, good morning, everyone. I'm Brian McGuire, President and CEO of AED. I want to welcome  you to our webinar as we take a look at the rules regarding the administration's executive order as it applies to federal contractors. Now, I know a lot of people are anxious to  hear and learn about the executive order that was issued that applies to those that employ 100 people or more. That rule has not been issued yet. And it's important to let  everybody know that AED continues to work with the Chamber of Commerce, the National Association of Manufacturers, and other coalition partners to respond to the administration's  rule. But in order to do that, we have to wait to see what they say. But we are in close contact with our partners to do that. But today, we're going to focus on the order  as it affects federal contractors and those who are working for federal contractors. So we're happy to provide this information for you. We hope you find it informative. And  it's now my pleasure to turn it over to Daniel Fisher, AED's Senior Vice President. Daniel. Thank you, Brian. And thank you, everyone, for joining this webinar. As Brian mentioned,  this will focus on the vaccine mandate as it applies to federal contractors. Currently, the mandate or the expected emergency temporary standard that impacts employers of 100 and  more is at OIRA, which is the Office of Information and Regulatory Affairs at the White House. We  anticipate that being released at some point in the near future. It could be hours, it could be  days, it could be weeks. But as soon as that does come out, as soon as we have more information,  we will communicate that to you. Right now, that is being held very close. Details are being held  very, very closely. So with that, I'm going to turn it over to Scott Cole. Scott is with the law firm of Gray Robinson to discuss the current topic of the day, which is the federal  contractor vaccine mandate. So Scott. Thank you, Danny. Appreciate it. Thanks for inviting me here today. I'm going to attempt to share my screen here. See if this works. Okay.  Oh, and as just a kind of a logistical reminder, if you do have questions, please submit them in the chat box and we will do question and answer at the end.  Okay, can you see the screen, Danny? Yep. Okay, good. All right, well, let's get started. Thank you, everybody. I'm Scott Cole. I'm an attorney with Gray Robinson in Orlando,  and I'm gonna talk about the federal contractor vaccine mandates.  Let me start. I know Danny mentioned briefly the 100-person or larger company mandates.  I'll just mention those briefly because there is some contrast between those and the federal contractor mandates. As everyone, I think, knows by now,  September 9th was a very large day out of the president's office. That's when they announced the federal workplace safety officials would be issuing the rule on vaccine mandates  for 100 or more employees, companies with 100 or more employees, to make sure that they were either vaccinated or produced a weekly test. And as Danny said,  those rules are at the White House right now waiting for final approval. And then they'll be issuing this ETS with specific details on how that's gonna work.  And these rules will have some teeth-covered employers  who ignore the standard could face violations and penalties up to $14,000 per violation.  This is most likely to be a fine per facility,  not per employee. So every facility that they find where the workers have not implemented the vaccine mandate, there could be a $14,000 fine.  And all employers covered by the OSHA Act must comply with the ETS.  The ETS will have immediate jurisdiction effect in the 29 states where the federal OSHA has jurisdiction. And then for the other states,  the state agencies who perform the same role at a state level as OSHA will have 15 to 30 days to basically pass a similar rule as OSHA comes out with.  That ETS will only remain in place for six months, and then they have to move to formal rulemaking process. Of course, by then, it's the federal government's intent  that all the workers will be vaccinated or getting the weekly test. So I'm not sure it makes a whole lot of practical difference whether they will start the rulemaking process then.  And in counting the 100 employees, they're gonna look at, we believe they'll look at total headcount and not, so it doesn't matter if they're part-time workers,  it'll be total headcount.  And then, of course, the federal government,  and this will be true in the federal contractor mandate as well, will be allowing exceptions based on disability or a sincere religious belief.  And there's a lot of discussion about  what employers have to do to make a determination of whether a religious belief is sincere or not. That's gonna be an interesting issue. But the major accommodation  that employers will probably be implementing if they grant an exemption under this rule anyway  is to allow for weekly testing as opposed to vaccination.  So the things we don't know is, we don't know for sure whether it'll apply to remote workers. Typically, OSHA does not apply to remote workers.  We don't know what type of proof will be acceptable, although you can be sure that the federal government vaccine card will be in probably an official form  from a licensed physician.  Not sure who will pay for testing,  but the employees must be paid for the time spent getting the test or vaccinations. And it's still an open question what role collective bargaining will have with that.  Okay, so now let's get to the federal contractor mandate. Again, this was part of the September 9th, 2021 announcement by President Biden.  The executive order directs the Safer Federal Workforce Task Force  which is a White House task force to issue a guidance document regarding vaccine requirements and other measures for federal contractor employees.  On September 24th, the task force did issue its guidance. And starting on September 30th, federal agencies began issuing their own specific agency guidance.  So here's the general summary of the requirements.  It requires each of the executive agencies to insert a clause in their covered contracts. And we'll talk about what that term covered contract means.  With certain federal contractors requiring COVID vaccinations for all covered contractor employees, we'll talk about that definition as well.  And again, there'll be accommodation allowed for a disability or a sincerely held religiously.  So what is a covered contract? I will tell you that it is extremely broad. There is no question that it's the administration's intent to have as many contractor employees vaccinated  as they can possibly get vaccinated. And so as we go through these definitions, you'll see that the effect will be that if you are a federal contractor with a covered contract,  most likely virtually all your employees will have to be vaccinated.  So a contract is defined as a contract or contract like instrument that includes procurement actions, lease agreements, cooperative agreements, provider agreements,  service agreements, licenses, federal permits, awards and notices of awards, job orders, tax letters, letter contracts, and purchase orders.  So you can see from that definition that covered contract pretty much covers the waterfront. The only things that are specifically excluded from that definition are federal grants,  contracts with Indian tribes, contracts under $250,000, and then contracts where the employees would be performing work outside the United States.  The important thing I'm sure for a lot of you is that this not only applies to the company that has a direct contract with the federal government,  but it must be flowed down to any tier subcontractor. It doesn't matter how far down. If you're operating ultimately under a federal covered contract,  you have to not only will you receive as the direct contractor, a clause from the federal government about vaccines, you've got to flow that clause down  to whoever you contract below you.  So again, it applies to any tier of a federal contract. So it only covers covered contract employees. So who are those employees? Well, it's any full-time or part-time employee  of a covered contractor who is working on or in connection with a covered contract. So if you have an employee who's working on one of these covered contracts,  which we talked about is really broad,  or in connection with that covered contract,  they're going to have to get a vaccine. In addition, any employee working at that covered contractor's workplace  is going to have to get a vaccine. That includes employees who are not themselves working on or in connection with that covered contract, if there's any possibility  that they could have physical interaction with those employees who are working on a covered contract. So the effect of that is that most employees  are going to be subject to this vaccination mandate.  And this definition, when they talk about someone who works in connection with a covered contract,  that's defined as any person who performs duties necessary to the performance of the covered contract, but who aren't directly engaged in performing that specific work  described in the contract. So who could that include?  That could include HR, your billing people, legal review.  And here's an interesting, that really, this is so incredibly broad. This is going to apply to remote workers who are working on or in connection with a covered contract,  even if they never visit a covered location. So the people who work 100% at home, if they are working either on that contract, federal contract that has the clause in it,  or they're one of these people like an HR person or a billing person or a lawyer, they're going to have to get a vaccine.  Okay, so what does this mean in how you actually operate under these clauses?  Well, first of all, this is a contract provision. That means that it only goes into play when you have agreed to contract with the federal government or you're a subcontractor  and you've agreed to contract with your prime contractor and they are putting that clause into your contract. You can always say no to the contract and you won't have an obligation.  That's how one way it differs from the OSHA rule.  But if you do accept a contract and it has that clause in it, then all of these employees are going to have to be fully vaccinated by December 8th.  And by fully vaccinated, that means that for the two-dose Moderna or Pfizer vaccines, that the second shot must be completed two weeks prior to December 8th.  And unlike the OSHA rule,  regular testing is not a substitute for the vaccination. So there is no, I'll just get tested once a week instead. No, unless you either get the religious exemption  or you get the disability exemption,  that employee is going to have to get the vaccination.  Now, there's been a lot of discussion about what happens in those states in Florida, where I am as one,  where you have a state law or executive order that prohibits mandatory vaccinations.  Well, the executive, the federal executive order says that it will supersede because of the supremacy clause of the United States Constitution.  It will supersede any conflicting state law.  What I can tell you as a practical matter, I know in Florida, the governor's about to call a special session to pass some additional laws that'll make it very clear  that they're prohibiting vaccine mandates. That's going to lead to a lawsuit. And from there, it's not clear what's going to happen.  It's certainly possible that there will be litigation, which will basically defer implementation of this federal vaccine mandate into some time in the future  if the court were to grant a temporary injunction, but that's not guaranteed. And it may be that their lawsuit continues, but the court doesn't issue an injunction  and the employees have to go ahead and start getting vaccinated. So we're just going to have to watch for that and see what happens.  But obviously Florida won't be the only state doing this. I'm sure we can anticipate Texas will be doing the same. And other states will have similar type of laws.  Okay, so when does all this get implemented? Well, commencing on October 15th, which is, well, last week, federal agencies were required to include the vaccine clause  in any new options under existing contracts or extension of previously awarded covered contracts.  Commencing on November 14th,  agencies must include the clause in new covered contracts.  And the agencies must start including the vaccine clause in contract solicitations issued between October 15th and November 14th.  And the agencies are being strongly encouraged to include the vaccine clause in covered contracts awarded or issued between October 15th and November 14th.  And again, once that clause is in effect, the employees must be fully vaccinated by December 8th. And as for new contracts that come in to effect after December 8th,  the employees are supposed to be vaccinated before that contract is actually, work starts to begin under that contract.  Again, this will cover contract employees if they meet that definition, even if they're working exclusively at home, will still be vaccinated.  In addition to the vaccine requirements for employees, you're going to be required to make sure that  all your employees and your visitors in your contractor workplaces, those are the facilities  where you have people working on these covered contracts, they must follow the CDC guidance  regarding physical distancing and masks. And if your workplace is in an area of high community  transmission, employees and visitors, regardless of whether or not they're vaccinated, must  wear masks inside your buildings. And then the guidance requires that each covered contractor  designate a person, it could be multiple people, but you have to identify specific people who  will implement the guidance. So there's consistency of advice. So, agencies have started to implement  this on September 30. The FAR Council issued contract clause for 52 to 2399. It's entitled  ensuring adequate COVID-19 safety protocols for federal contractors. And it's a very simple clause, all it says is, you must follow the task force guidance. Now what's interesting  about this is you must follow the guidance as it exists at the time that you're dealing with these issues. In other words, the guidance could change over time. And the point of that  is that if, for example, the pandemic gets to extremely low level, they could change the guidance and they could remove some of the vaccine mandates going forward. Alternatively,  if we were to have another increase in COVID, they could add add additional requirements  over and above what they currently have in the task force guidance. And because the contractor  has agreed that it will follow that task for guidance, however it changes, you're going to have to adjust with the changes in that guidance. And then the FAR Council authorized  agencies, federal agencies to immediately exercise their deviation authority to implement that clause. Another agency on October 1, the DOD exercised its deviation authority  and published a clause to 52 to 23 7999. It's essentially the same as the FAR clause we just talked about. But in addition, it encourages contract officers to include the clause in  agreements not otherwise covered by the executive order. So, you know, we talked about the executive  order does not apply, does not have to be implemented for contracts under $250,000, for contracts for strictly for products. They're authorizing their agencies to go ahead and  put that clause in contracts under $250,000 and in contracts just for products.  On September 30, the GSA published Class Deviation CD 2021-13. It basically says that it provide  instructions for the GSA acquisition workforce regarding when to include new FAR 52 to 23  7999 in GSA solicitations and in their contracts. Again, the GSA is strongly encouraging its contracting officers to incorporate the clause in agreements not, you know, specifically  covered by the executive order. Again, $250,000 and less and contracts solely for manufacturing products. It also directs the contracting officers to execute bilateral modifications  for existing contracts, IDQs and contract-like instruments. So, while the executive order,  you know, only applies as new contracts are coming online or there's an amendment or they're exercising an option. And so, therefore, you basically could wait out for a particular  contract's term to end before you might see the clause in the contract. They're encouraging their agencies to go ahead and try to amend those contracts now. Those amendments have  to be bilateral. That means that both parties have to agree. So, technically, if the GSA wanted to amend an existing contract that's got two years left on it, they could propose  putting the clause in your existing contract, but you would have to agree to it for it to  actually go into effect. So, as you can see, this is incredibly broad and that's intentional. The Biden administration wants to get as many employees vaccinated as possible. They're  using their contracting authority to do that. And, you know, basically saying if you want to do business with the federal government, you need to have your employees vaccinated.  As I mentioned, expect some lawsuits. And, you know, we don't know for sure how tough the federal government will be in dealing with companies that refuse to comply with  these contract clauses, but the tools in their tool bag include terminating contracts because  of a default and also debarring contractors from further federal contracting opportunities.  So, at this point, employers, all of you should be preparing now for compliance. I would recommend  you send notices to your employees, let them know that this is around the corner, develop your own procedures for implementing, and then FAQs can be really important to answer  a lot of questions. If you go to the actual task force guidance and you go to the White House website for that, there are a lot of FAQs in the guidance, so that may help you  in putting together some guidance for your employees. And, of course, obviously, if you have any questions about how to implement any of this, I'm happy to help you. And my  email address and phone number is on the screen. I'd be happy to take in any questions you might have. So, Danny, that's the overview. If we have any questions or anything, I'm  happy to take those, but it's incredibly broad, man.  Sure. Yeah, we do have a few questions here. Does subcontractors extend to suppliers? Well, it depends on the clause. If the clause extends to suppliers of products and the contract  is flowing down from a federal contractor and your particular contract has that clause in it, then yes, you would have to comply with it.  Let's see. So, I guess, I mean, this is a question I have. So, if you have a contract with a sub or a contractor and there's no clause in there, then is it safe to assume  then that you don't have to comply? I mean, it's really just a contractual obligation, correct?  Yeah, that's the difference between the federal contractor mandate and the OSHA rules for  100 plus employers. This is a contract provision. So, if there's no clause in your contract,  then you don't have to do anything with respect to this, you know, these requirements. Obviously,  if you're an employer over 100 and then those new rules come out, that may apply to you as well. But in terms of federal contract, this is strictly, they're hooked to get you  to respond to this is by putting it in a contractor clause that you agree to. You don't agree to the clause or you don't have a clause in your contract, you're not subject to these  requirements. And then, so if you're, say, supplying a contractor, it's the onus is on then, like the contractor to put that in the contract with you, essentially.  That's right. You don't have to inquire to find out if upstream, there's a clause in a contract, maybe between that party and the federal government. If the onus is on the  contractor to push it downstream, there's no obligation to check upstream to see what if there's a contract clause.  In a situation where the contract is for products, I've assumed that those workers responsible for manufacturing assembling product at the factory are covered. Is that correct?  Yes. Yes. If it's flowing down and you've got it, your contract has that clause, anybody who's putting together those things in compliance with the contract and people  who are performing support services and any employees who are going to be interacting  with the people who are putting together product pursuant to that contract, all of those individuals are going to be subject to the vaccine requirements.  Let's see here. Since this applies to every level, some subcontractor as well, will organizations  be notified that they are sub somewhere down the tier? So that, I think that you answered that question already. That's a yes.  And then how does this apply to rental of equipment? I'm assuming the same way it would apply to sale of equipment. If there's a contract, it'll be in the contract.  Let's see. Understanding that for employers 100 and plus, it's an either or scenario. So this is, I think gets into the ETS. They will fall into the ETS category or into the  federal mandate if a federal contractor got that. But what happens if a federal contractor decides not to agree to take on a new federal contracts or to accept amendments to current  contracts? In other words, still a federal contractor, but turns down any newer amended contracts.  Yeah. So that's right. So if you just decide you don't want to accept any new federal contracts,  that's fine. You're not going to have a clause in your agreement. You could continue to work  on your existing federal contracts that don't contain the clause. Now, don't be surprised if the federal agency or your prime contractor reaches out and tries to get you to amend  your existing contract to include the clause. That's up to you. But when that contract expires, if there is an intention to continue to do that type of work, that new contract will  have the clause in it. And at that point, you're going to have to comply with it.  What if I moved all unvaccinated to one of my locations that will then not work on any government jobs?  So if you can show that you have a group of employees that will not physically interact  with people who are working on or in connection with the federal contract, you do not have to  force those people to be vaccinated. But you've got to be able to show that there's no interaction.  So if you're in a completely different location, that's great as long as they don't go regularly  travel to the home office or interact with those people. It's not enough to be in a different  building on the same location because you're likely to interact in the parking lot on an elevator or whatever. But if you're really separated in completely different locations  and you don't interact physically, then you would not be subject to the mandate.  Right. And then this is regarding the ETS. And I'm not sure if we know the answer to this yet, but is the headcount for the OSHA mandate required if you have over 100 employees,  but they're spread out and there are fewer than that at any one site?  We don't know that for sure. I anticipate they're going to make it absolutely as broad as possible. So it's certainly possible that's going to be the case.  And then I guess one question I have. So how does this impact a contractor who say working on a  job site for like road and bridge project where federal money, I guess, flows down through the  state? I guess then is it the onus on the state then to put it in their contract with the contractor? And then it would then be the onus of the contractor to put it in their  contract with our equipment suppliers or those servicing the equipment. Is that correct? That's exactly right. So a lot of folks, there'll be a good number of companies  that actually don't do any direct federal contracting, but they're dealing with a lot  of people who do, including their state agencies. So that state agency is going to get the clause  from the feds. They're going to push it down to everybody below them and require the person below  them to put it in their contract. So it's going to flow down. So even though you may never  seen a federal contractor in your life, I mean, a federal agency person in your life, you can still end up being subject to one of these clauses.  All right. Well, I think that's all the questions. The other question is,  is it okay if we circulate your PowerPoint? Absolutely. Okay. I'll send it to you, Danny, and then you can circulate it. Perfect. Oh, then also, actually, this is a good question.  So if the state receives a grant, though, then that would be a different situation, I guess, a different situation, right? That's correct. It does not apply to grants.  Okay. All right. Well, that's about all. Thank you, Scott. This has been very informative.  And thank you for your time. And for those who have asked, we will circulate the PowerPoint to  those who registered for the webinar. And I think that's it. Thank you, everyone, for joining. And  again, thanks, Scott, for putting on this webinar. Really appreciate it. My pleasure. Good luck. Thank you. I think we'll all need it.

Video Summary

In this webinar, Brian McGuire, President and CEO of AED, and Daniel Fisher, AED's Senior Vice President, provide an overview of the executive order regarding COVID-19 vaccine mandates for federal contractors. They explain that the rule specifically applies to those who employ 100 people or more, and that the rule has not been issued yet. AED is working with partners to respond to the rule once it is issued. The webinar focuses on the vaccine mandate as it applies to federal contractors and those who work for federal contractors. Scott Cole, an attorney with Gray Robinson, discusses the requirements of the mandate in detail. He explains that the mandate applies to various types of contracts, including procurement actions, lease agreements, cooperative agreements, and more. He also highlights that the mandate applies to full-time and part-time employees working on or in connection with a covered contract. Scott explains that the vaccine mandates for federal contractors require employees to be fully vaccinated by December 8th, with no option for regular testing as an alternative. He addresses potential conflicts with state laws prohibiting vaccine mandates and advises employers to prepare for compliance with the mandates. The webinar concludes with a Q&A session where Scott answers questions from participants. Overall, the webinar provides information and insights on the COVID-19 vaccine mandates for federal contractors.

Asset Caption

Recently, the Biden administration’s Safer Federal Workforce Task Force released COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors. Join AED’s Senior Vice President Daniel B. Fisher and W. Scott Cole, a shareholder at the law firm Gray Robinson to discuss the new mandates and its impact on the equipment industry. Scott has extensive experience providing legal advice, strategy and conflict resolution to both public and private sector clients.

Whether you contract directly with the federal government or supply and service customers who work on government contracts, you’ll want to view this webinar to learn of the new requirements and obligations.

Keywords

webinar

COVID-19 vaccine mandates

federal contractors

rule

Scott Cole

compliance

Q&A session