Hunton Employment & Labor Perspectives

Federal contractors can make their own determinations on vaccination exemptions and do not need to terminate employees who refuse vaccination, according to new guidance from the Biden Administration.

The Safer Federal Workforce Taskforce updated its Frequently Asked Questions page related to President Biden’s Executive Order 14042, which requires federal contractors ensure their employees who work in connection with federal contracts receive vaccination for COVID-19.  The Taskforce issued its initial guidance on September 24, 2021, which we covered in a previous blog.  The updates provide additional compliance advice requested by contractors as they attempt to comply with the mandate to get employees vaccinated by December 8, 2021, or another date specified in their federal contract.

Under the guidance, federal agencies should work cooperatively with contractors to achieve compliance with the vaccination requirements.  Agencies should not immediately take punitive actions against contractors that have made good-faith efforts to comply with the requirements.  However, if contractors do not demonstrate compliance efforts, agencies are instructed to take significant actions, including contract termination.

 The guidance confirmed that federal contractors maintain the authority to consider and adjudicate requests for vaccination exceptions from their employees based on medical or religious reasons.  Contractor employees may begin work on federal contracts while decisions on their accommodation requests remain pending.  Contractors should follow the relevant federal law – either the Americans with Disabilities Act or Title VII of the Civil Rights Act – when making determinations on accommodation requests.

Contractors should inform their relevant federal agency partner if any unvaccinated employees work on federal worksites, either because the contractor granted an accommodation or because the accommodation request remains pending.  The federal agency may require additional safety protocols from the unvaccinated employees, or choose to prohibit them from accessing federal sites while they are unvaccinated.

Federal contractors do not need to immediately terminate employees who refuse to receive their COVID-19 vaccination by the contractor’s deadline.  The guidance recommends that contractors start with continued education and counseling for employees to receive vaccination before escalating to imposition of discipline.  Like other unvaccinated employees, they may be subject to additional safety protocols at contractor or agency worksites while the counseling process continues.

The guidance also addressed how the requirements of the Executive Order apply to companies and their corporate affiliates.  If businesses are subject to the control of the same parent company, or have the ability to control each other, then the government will view them as affiliates under the Executive Order.  If affiliates occupy the same worksite, and any covered contract employees work at that site, then the vaccination requirements from the Executive Order are likely to apply to all employees at that site, even if the affiliate company does not perform federal contract work.

Federal contractors should remember that their obligations under the Executive Order depend on the terms of their particular contracts, and may vary depending on their federal agency partner.  If contractors have questions about how these requirements apply to their particular federal contract work, they should contact their agency contracting officer or legal counsel.