The Federal Vaccine Mandate and What it Means for Employers

Tom Wolfe Headshot
Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

On Sept. 9, 2021, President Biden announced a plan to increase COVID-19 vaccination rates in the U.S. in order to help stop the spread of the virus, including the highly contagious Delta variant. The plan is expected to cover about 100 million employees – approximately 2/3 of U.S. workers. It includes, among other things:

  • Executive Order 14043 mandating COVID-19 vaccinations for all federal Executive Branch employees;
  • Executive Order14042 mandating vaccinations for employees of federal contractors and subcontractors; and
  • A directive to the Occupational Safety and Health Administration (OSHA) to issue Emergency Temporary Standard (ETS) mandating vaccinations and/or routine testing for employers with more than 100 employees.

The Safer Federal Workforce Task Force (“Task Force”) established by President Biden in January 2021 (Executive Order 13991) was directed to issue further guidance regarding both executive orders.

Background

The President initially announced vaccine-related requirements for the federal government employees back in July 2021, i.e., that employees who did not attest to being fully vaccinated would be required to wear a mask, physically distance from others in the workplace, get regularly tested for COVID-19, and face certain restrictions on official travel. The same requirements applied to contractors employed at federal sites. While not subject to that mandate, private sector employers were encouraged to follow a similar model. Additionally, tax credits available under the American Rescue Plan (ARP) to reimburse eligible small- or medium-sized employers that provide employees with paid time off to get vaccinated were expanded to cover vaccinations for employees’ family members.

The President’s new plan takes this several steps further. And to the extent that federal requirements are more stringent than existing state or local requirements, they will take precedence. Neither California nor Nevada currently has a statewide vaccine mandate that impacts credit unions or employers of a particular size, although both states have adopted limited mandates applicable to certain higher-risk sectors, such as healthcare workers. Consistent with Equal Employment Opportunity Commission (EEOC) guidance, both states have indicated that nondiscriminatory vaccine mandates, subject to legally recognized exceptions, are not prohibited by law.

Executive Order No. 14043: Federal Employees[1]

While credit unions are not directly impacted by Executive Order 14043 mandating vaccination for federal employees, the Task Force updated its COVID-19 Workplace Safety: Agency Model Safety Principles[2] on Sept. 13, 2021. Under the executive order, federal Executive Branch employees are required to be fully vaccinated by November 22, 2021 except where the employee is entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) or for sincerely held religious belief, practice or observance. There is no longer an option for regular testing in lieu of vaccination.

Executive Order No. 14042: Federal Contractors[3]

Executive Order 14042 applies to federal contractors and raises the question as to who exactly is considered a federal contractor and subject to these requirements. For federally-insured credit unions, this answer has been less than clear depending upon the nature and context of the requirement.

The executive order specifically requires Executive Branch departments and agencies, to the extent permitted by law, to ensure that contracts and contract-like instruments (as defined) include a clause confirming that the contractor and any subcontractor (at any tier) complies with all guidance for contractor or subcontractor workplace locations published by the Task Force. This clause will apply to any workplace location where an individual is working on or in connection with a federal government contract or contract-like instrument. The requirements will apply to subcontractors at all tiers, regardless of size, except for subcontracts solely for the provision of products. In other words, the prime contractor must include the clause for first-tier subcontractors, and higher-tier subcontractors must do so with the next lower-tier subcontractor until the subcontract is solely for the provision of products.

As directed, the Task Force published COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors on September 24, 2021 (“Guidance”)[4] with additional information concerning the order’s applicability and scope. According to the Guidance, federal contractors and subcontractors with a covered contract will be subject to the following protocols (discussed in more detail below):

1.Covered contractor employees must be vaccinated, except where an employee is legally entitled to an accommodation;

  1. Individuals, including covered contractor employees and visitors, must follow masking and physical distancing Guidance while in covered contractor workplaces; and
  2. Covered contractors must designate a person(s) to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

These requirements are in addition to any workplace safety protocols applicable to the covered contractor employee’s presence at a federal workplace. In determining whether a particular credit union will be subject to these requirements, the Guidance provides some key definitions:

Covered Contracts

Per Sections 5(a) and 6 of the executive order, it applies to any new contract or contract-like instrument, including any new solicitation, extension, renewal, or exercise of an option on an existing contract or contract-like instrument, on or after October 15, 2021, including:

(i) procurement for services, construction, or a leasehold interest in real property;

(ii) services covered by the Service Contract Act (41 U.S.C. §6701, et seq.);

(iii) concessions, including those excluded by Department of Labor regulations (29 C.F.R. 4.133(b)); or

(iv) contracts with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public;

It specifically excludes: (i) grants; (ii) contracts with Indian Tribes; (iii) contracts whose value is equal to or less than the simplified acquisition threshold (generally $250,000); (iv) employees who perform work outside the United States; or (v) subcontracts solely for the provision of products.

Covered Contractors

The Guidance defines a “covered contractor” as “a prime contractor or subcontractor at any tier who is party to a covered contract.” The question of whether a credit union is a federal contractor turns on the specific language of the law or order at issue and, unfortunately, it is not absolutely clear here. The Department of Labor (DOL)’s Office of Federal Contract Compliance Programs (“OFCCP”) has taken the position that, by virtue of holding federal share insurance, federally-insured credit unions are considered federal contractors for purposes of preparing and maintaining an affirmative action plan under Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (applicable to federal contractors of 50 or more employees with a government contract of $50,000 or more).

The emphasis on the contract in this definition lends itself to the argument that federal share insurance alone is not sufficient to confer federal contractor status in this case. Credit unions are encouraged to discuss questions about applicability with legal counsel, particularly for those that serve federal agencies or are located on a military base or other federal facility. We will continue to watch for additional guidance on this point.

Covered Contractor Employees

A “covered contractor employee” is defined as “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace.” The Guidance applies to all covered contractor employees and to all contractor or subcontractor workplace locations (i.e., any “covered contractor workplace” or “federal workplace”).

  • A “covered contractor workplace” is a location controlled by a covered contractor where any employee is likely to be present during the period of performance, excluding the employee’s residence. It includes both indoor and outdoor locations. Employees need not be personally working on or in connection with a covered contract to be covered.
  • A “federal workplace” is any place, site, installation, building, room, or facility in which any federal executive department or agency conducts official business, or is within an executive department or agency’s jurisdiction, custody, or control. Covered contractor employees are also subject to any additional workplace safety requirements for that workplace. This means that, unless legally entitled to an accommodation, covered contractor employees who work only at a federal workplace need to be fully vaccinated by December 8, 2021 as well.

By October 8, 2021. the Federal Acquisition Regulatory Council (“FAR Council”) will develop a clause as well as protocols and guidance for incorporating the requirements into covered instruments entered into on or after October 15, 2021. For contracts awarded prior to October 15, 2021 where performance is ongoing, the requirements must be incorporated at the point when an option is exercised or an extension is made. The requirements must also be incorporated into all new contracts awarded on or after November 14. Between October 15 and November 14, the clause must be included in the solicitation. Agencies are encouraged but not required to include the clause in contracts awarded during this time, unless the solicitation was issued on or after October 15.

The Task Force Guidance provides as follows:

  1. Vaccination for Covered Contractor Employees

The Guidance provides that covered contractors must ensure that all covered contractor employees are fully vaccinated no later than December 8, 2021, unless legally entitled to an accommodation. After that date, employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, an exercised option, or an extended or renewed contract containing the clause. Covered contractors must review documentation to prove vaccination status, which can be an immunization record from a health care provider or pharmacy, a Centers for Disease Control (CDC) Vaccination Record Card, or other official medical or immunization record verifying the vaccine name, date(s) of administration, and administering health care professional or clinic site. Digital records are permissible.

It is important to note that, despite the October 15, 2021 compliance date, the executive order provides that “agencies are strongly encouraged, to the extent permitted by law” to incorporate the requirements into any non-covered contracts with non-covered contractors whose employees perform work at covered contractor workplaces but who do not work on or in connection with a federal contract.

Additionally, the guidance applicable to federal agencies indicates that, prior to becoming subject to a contractual requirement, onsite federal contractor employees who are not fully vaccinated will need to provide proof of a negative COVID-19 test no more than three days prior to entering a federal building. However, contractor employees that are regularly tested under an agency testing program do not need to provide proof of a negative COVID-19 test unless required to by the agency testing program.

  1. Masking and Physical Distancing for Covered Contractor Employees and Visitors

Covered contractors must ensure that individuals, including covered contractor employees and visitors, follow the CDC’s masking and physical distancing guidance at a covered contractor workplace in addition to any Task Force Guidance.

Masks: In areas of high or substantial community transmission, masks are required in indoor settings regardless of vaccination status, with limited exceptions. In areas of low or moderate community transmission, fully vaccinated individuals do not need to wear a mask. Individuals not fully vaccinated must wear a mask indoors and in certain outdoor settings regardless of community transmission level.

Covered contractors must require individuals in covered contractor workplaces who are required to wear a mask to wear appropriate masks consistently and correctly in common areas or shared workspaces. Individuals not fully vaccinated must also be required to wear a mask in crowded outdoor settings or during outdoor activities involving sustained close contact with other unvaccinated persons. Covered contractors may be required to provide accommodations to covered contractor employees on the basis of disability or sincerely held religious belief, practice or observance.

Distancing: Fully vaccinated individuals do not need to physically distance regardless of community transmission level. To the extent practicable, individuals not fully vaccinated should always maintain six feet of physical distancing in offices, conference rooms, and other communal and workspaces.

Exceptions: Covered contractors may provide for exceptions to mask wearing and/or physical distancing requirements consistent with CDC guidelines, or for covered contractor employees “engaging in activities in which a mask may get wet; high intensity activities where covered contractor employees are unable to wear a mask because of difficulty breathing; or activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment.” However, any exceptions must be approved in writing by the covered contractor.

Ongoing Review: Covered contractors are required to check the CDC COVID-19 Data Tracker County View website at least weekly to determine the community transmission level for every covered contractor workplace and adjust workplace safety protocols consistent with the guidelines. More stringent protocols must be adopted immediately when the community transmission levels increase from low or moderate to substantial or high, but less stringent protocols may only be adopted after community transmission levels are reduced from substantial or high to low or moderate and remain for at least two consecutive weeks.

On a related note, visitors will be required to show proof of vaccination status or proof of a negative COVID-19 test no more than three days prior to entering a federal building. Visitors entering a federal building or federal land to obtain a public service or benefit are not subject to this requirement, but must comply with all relevant CDC guidance, including masking, if not fully vaccinated. A federal employee visiting another agency will be treated as a visitor.

  1. Designated Person to Coordinate COVID-19 Workplace Safety Efforts

Covered contractors must designate a person(s) to oversee compliance with the Guidance and workplace safety protocols at covered contractor workplaces. Such person must ensure that relevant COVID-19 workplace safety information and protocols are communicated to covered contractor employees and other individuals likely to be present at covered contractor workplaces. This can be done through email, websites, memoranda, flyers, or other means and posting signage. It also includes communicating masking and physical distancing requirements to visitors and all other individuals present at covered contractor workplaces. Such person will also be responsible for ensuring that covered contractor employees comply with the requirement to provide required vaccination documentation.

OSHA Rules: Private Sector Employers of 100 or More

Of the most significance to credit unions is the President’s directive to the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop rules for private sector employers with 100 or more employees, which will require employees to either be fully vaccinated or provide a negative COVID-19 test result at least weekly. OSHA is currently developing an Emergency Temporary Standard (ETS) to implement this requirement but we have yet to see any specifics.

Another aspect of the ETS will be a requirement for employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if from any post-vaccination adverse effects. To the extent that the federal requirements are more stringent than current state requirements, we can expect Cal/OSHA and Nevada OSHA to take prompt action to ensure consistency.

For California and Nevada Credit Unions

Credit Unions with questions as to their potential federal contractor status are encouraged to consult with legal counsel. In the meantime, those with 100 or more employees should be watching for the OSHA ETS (and any subsequent state plan changes) and discuss any questions with counsel. It will be important to promptly amend existing COVID-19 Prevention Plans to ensure compliance with any new federal requirements more stringent than current state or local requirements. Staff should be notified in writing of anticipated policy changes, such as vaccination and testing requirements, and policies should reflect the reasons for the requirement and the consequences for failure to comply.

Not surprisingly, the vaccination mandate was almost immediately challenged by the Arizona Attorney general as unconstitutional, and other states have expressed interest in doing the same. [Brnovich v. Biden, Case No. 2:2021cv01568 (September 14, 2021; US Dist. Ct., Dist. of Arizona).] Additionally, at least one group of federal workers, service members and contractors have filed suit challenging the mandates. [Gregg Costin, et al. v. Joseph R. Biden, Case No. 1:21-cv-2484 (September 23, 2021, U.S. Dist. Ct., Dist. of Columbia).] More challenges are expected once OSHA rules are issued. While it’s too early to know whether these or other lawsuits will ultimately be successful in delaying implementation of the mandates, similar constitutional challenges to nondiscriminatory vaccine mandates have been rejected by the courts.

Credit unions considering vaccine mandates apart from any federal mandate are encouraged to work with legal counsel. While agencies may have indicated that nondiscriminatory vaccine mandates that allow for legally recognized exceptions may be permissible, the devil is in the details.

 

Article by Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

 
 

[1] Executive Order No. 14043: Requiring Coronavirus Disease 2019 Vaccination for Federal Employees

[2] Safer Federal Workforce Task Force COVID-19 Workplace Safety: Agency Model Safety Principles (September 13, 2021)

[3] Executive Order No. 14042 (09/09/21): Ensuring Adequate COVID Safety Protocols for Federal Contractors

[4] Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (September 24, 2021)

Pin It