Federal Contractors are being given additional time and flexibility to address the vaccination mandate – Employees must be fully vaccinated by January 18, 2022.
The Department of Health and Human Services (HHS) and The United States Department of Agriculture (USDA) Contracting Officers Have Enormous Discretion To Add Vaccine Mandate Clause to Product Contracts.
On November 1, 2021, the Safer Federal Workforce provided new answers to frequently asked questions (FAQs) surrounding the mandate to add a vaccination requirement to certain federal contracts. Then on November 4, 2021, the Administration released a “Fact Sheet” to announce:
- The Department of Labor’s Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring employees of employers with 100 or more employees to be vaccinated or tested weekly and wear face coverings; and
- The Centers for Medicare & Medicaid Services (CMS) vaccination requirements for health care workers and facilities participating in Medicare and Medicaid.
As part of these announcements, the Administration provided a uniform compliance date of January 4, 2022, for these various vaccination policies and mandates, including the requirement that covered federal contractors have all employees vaccinated by December 8, 2022. The Administration’s Fact Sheet states:
“To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or a single dose of Johnson & Johnson – by January 4, 2022.”
We note the specificity of the wording that employees, whether covered by the federal contractor requirements, ETS, or CMS rule, must have their final dose by January 4, 2022. A person is deemed to be “fully vaccinated” two weeks after their final dose. Thus, covered employees, including employees of federal contractors, must have received their final dose by January 4, 2022, and will be deemed fully vaccinated by January 18, 2022.
This Administration Fact Sheet is, currently, inconsistent with the Safer Federal Task Force Guidance (Guidance) describing the federal contractor mandate that was released on September 24, 2021. The Guidance still states that covered employees must be “fully vaccinated” by December 8.
Agencies Deviate on Implementation of Federal Contractor Vaccine Mandate
As provided in the Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (E.O.), and the implementing Guidance, a vaccination requirement clause will be added to federal contracts for services, leaseholds, and concessions. Agencies are encouraged but not required to add the clause to contracts and subcontracts that are outside the E.O., including those for the provision of products.
As a result of this discretion, we are observing deviations in how various agencies are intending to incorporate the vaccination mandate into their contacts. Contracting Officers (COs), even within a single agency, have the discretion regarding whether to extend the definition of “federal contractor” and add the vaccination mandate clause to contracts for the provision of products, which are otherwise outside the scope of the Executive Order:
- HHS: HHS COs are “encouraged, but are not required, to include the clause in … contracts and contract-like instruments that are not covered or directly addressed by the E.O. because the contract or subcontract is for the manufacturing of products.”
- USDA: USDA COs may, “at their discretion,” insert the vaccination clause in “all solicitations, contracts, task orders, and delivery orders for the manufacturing of products.”
The result may be more flexibility for a federal contractor, but also less consistency and uniformity.
OFW Law will continue to monitor this fluid and fast-moving arena of vaccine mandates. If you have further questions, please contact us.