Tuesday, November 2, 2021

Federal Contractor Vaccine Mandate Updated Yet Again

The Safer Federal Workforce issued some new updates to its Federal Contractor Covid-19 vaccine mandate FAQS. The updates are conveniently marked "NEW" (as of me writing this) to help readers spot the changes. 

Some interesting tidbits:

Questions arise about what it means for an employer to "control" the location where its employees are working on or in connection with a federal contract. The new FAQs give us some "indicia of control," including "interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees."

Federal agencies also received guidance on what to do if a contractor is not following the rule - a question that has come up repeatedly because the guidance thus far has omitted any discussion of penalties or consequences:

Not official use.
Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.

We also got some advice to the contractors on how to handle problem employees:

One model for enforcement among employees with respect to non-compliance with a vaccination requirement is that being followed by Federal agencies. Guidance for Federal agencies is to utilize an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance. Guidance for Federal agencies is that employees should not be placed on administrative leave while the agency is pursuing an adverse action for refusal to be vaccinated but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites.

Frankly, this is a little more lax than I appreciated. It is probably welcome news for employers who feared a strict vaccinated-or-fired standard to hit on December 8, 2021. 

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